By Christine Souza, Ag Alert
The latest change in presidential administrations has brought another change in direction in overseeing waters of the United States.
Based on an executive order by President Joe Biden that directs federal agencies to review all existing regulations and orders made during the previous administration, the U.S. Environmental Protection Agency announced last week it intends to repeal the Trump-era rule regulating waters of the U.S. under the federal Clean Water Act.
The Trump administration rule had replaced an Obama-era rule that agricultural organizations said would have given federal agencies extensive authority to regulate routine farming activities under the act.
The Trump administration rescinded the Obama rule, known as the Waters of the United States, or WOTUS, rule, and replaced it with the 2020 Navigable Waters Protection Rule—which will now be repealed and replaced.
“This is WOTUS round three, with the pendulum swinging the other way,” California Farm Bureau Senior Counsel Kari Fisher said.
In their announcement, EPA and the U.S. Army Corps of Engineers said they would repeal the current rule and, Fisher said, “will begin crafting a new definition as to what is a water of the United States.”
EPA Administrator Michael Regan said the EPA and Department of the Army have determined that the current rule is “leading to significant environmental degradation.”
Regan said the agencies now seek to establish “a durable definition of ‘waters of the United States’ based on Supreme Court precedent and drawing from the lessons learned from the current and previous regulations.”
He said EPA and the Corps would also listen to “a wide array of stakeholders,” with the goal to “better protect our nation’s waters, foster economic growth, and support thriving communities.”
American Farm Bureau Federation President Zippy Duvall expressed disappointment with the planned reversal of the Navigable Waters Protection Rule.
“We call on EPA to respect the statute, recognize the burden that overreaching regulation places on farmers and ranchers, and not write the term ‘navigable’ out of the Clean Water Act,” Duvall said.
He expressed concern about regulations affecting prior-converted croplands and ephemeral streams, and said AFBF would urge U.S. Agriculture Secretary Tom Vilsack “to ensure that we don’t return to the regulatory land grab that was the 2015 WOTUS rule.”
“Clean water and clarity are paramount, and that is why farmers shouldn’t need a team of lawyers and consultants to farm,” Duvall said.
The current Navigable Waters Protection Rule replaced the 2015 Obama administration version, which farmers and ranchers opposed. Farm Bureau advocated for a repeal and rewrite of the 2015 WOTUS rule, saying it generated confusion and litigation and, ultimately, would have significantly expanded federal jurisdiction over water and land.
Farm Bureau and other agricultural organizations expressed support for a rule that offers certainty, transparency and a common-sense approach about how the rule would apply on the farm.
The existing Navigable Waters Protection Rule defines four categories of waters that are federally regulated: territorial seas and traditional navigable waters; perennial and intermittent tributaries to those waters; certain lakes, ponds and impoundments; and wetlands adjacent to jurisdictional waters.
The current rule also describes what is not subject to federal control, such as features that only contain water due to rainfall; groundwater; many ditches; prior-converted cropland; farm and stock watering ponds; and waste treatment systems.
Fisher said she expects the repeal and replacement of the rule will likely trigger more legal challenges.
EPA Administrator Regan said the Department of Justice will file a motion requesting remand of the rule. He said the agencies then plan to initiate a new rulemaking process that “restores the protections in place prior to the 2015 WOTUS implementation, and anticipates developing a new rule that defines WOTUS and is 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.”
Further details of the agencies’ plans, including opportunities for public participation, will be conveyed in a forthcoming action, the agencies said. To learn more, see www.epa. gov/wotus.
