Embattled Waters of the U.S. to be Redefined for Agriculture – Again

In April, U. S. Environmental Protection Agency (EPA) Administrator Michael Regan told Congress he did not intend to return to the Obama administration’s definition of Waters of the U.S. (WOTUS).

On Wednesday, he made good on that declaration, announcing via a press release that EPA and the Department of the Army plan to revise the definition of WOTUS to “better protect our nation’s vital water resources that support public health, environmental protection, agricultural activity, and economic growth.”

The announcement means the agencies are also setting aside the Navigable Waters Protection Rule (NWPR) – the most recent regulatory definition of WOTUS – which was confirmed and put into effect just less than a year ago on June 22, 2020.

“He made clear during his confirmation hearing that EPA would seek – that was his word – to undo the Trump-era revisions to the Obama administration's Waters of the U.S. rule,” recalls Jim Wiesemeyer, Pro Farmer Washington analyst, of Regan's comments. "He didn't fully commit to reinstating the Obama standards without change, but he didn’t punt that issue off. He gave a clear signal (EPA) would want to review it and go back into some parts of the (NWPR).”

Upon review of the Navigable Waters Protection Rule, the agencies say they determined that it is significantly reducing clean water protections in the U.S.

Acting Assistant Secretary of the Army for Civil Works Jaime A. Pinkham claims the NWPR has resulted in a 25-percentage-point reduction in “determinations of waters that would otherwise be afforded protection.”

“The lack of protections is particularly significant in arid states, like New Mexico and Arizona, where nearly every one of over 1,500 streams assessed has been found to be non-jurisdictional,” according to the release. “The agencies are also aware of 333 projects that would have required Section 404 permitting prior to the Navigable Waters Protection Rule, but no longer do.”
 
As a result of these findings, the Department of Justice is filing a motion requesting remand of the rule.

Next, the EPA and Department of the Army plan to initiate a new rulemaking process to restore the protections that were in place prior to the 2015 WOTUS implementation.

The agencies plan to develop a new rule to define WOTUS and will be “informed by a robust engagement process as well as the experience of implementing the pre-2015 rule, the Obama-era Clean Water Rule, and the Trump-era Navigable Waters Protection Rule.”
 
The agencies’ new regulatory effort will be guided by the following considerations:

• Protecting water resources and our communities consistent with the Clean Water Act.
• The latest science and the effects of climate change on our waters.
• Emphasizing a rule with a practical implementation approach for state and Tribal partners.
• Reflecting the experience of and input received from landowners, the agricultural community that fuels and feeds the world, states, Tribes, local governments, community organizations, environmental groups, and disadvantaged communities with environmental justice concerns.

The release says the agencies are committed to “meaningful stakeholder engagement to ensure that a revised definition of WOTUS considers essential clean water protections, as well as how the use of water supports key economic sectors.”

Further details of the agencies’ plans, including opportunity for public participation, will be conveyed in a forthcoming action. More information on the ruling is available here: https://www.epa.gov/wotus.

Back to the drawing board on waters of the U.S. definition

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