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EPA Announces Plans to Revise WOTUS Definition; AFBF, House Ag Committee GOP Expressing Disappointment

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On Wednesday, the Environmental Protection Agency (EPA) and the Department of Army (the agencies) announced their intent to revise the definition of the waters of the United States (WOTUS). According to a news release from the EPA, this decision is to “better protect our nation’s vital water resources that support public health, environmental protection, agricultural activity, and economic growth.”

“After reviewing the Navigable Waters Protection Rule as directed by President Biden, the EPA and Department of the Army have determined that this rule is leading to significant environmental degradation,” said EPA Administrator Michael S. Regan. “We are committed to establishing 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, as well as input from a wide array of stakeholders, so we can better protect our nation’s waters, foster economic growth, and support thriving communities.”

The EPA says states, Tribes, local governments, scientists, and non-governmental organizations “are seeing destructive impacts to critical water bodies” under the 2020 Navigable Waters Protection Rule, which was finalized by the Trump administration.

This announcement is not welcome by ag groups, especially after Administrator Regan said the EPA would not return to the first iteration of WOTUS under the Obama administration. Zippy Duvall, president of the American Farm Bureau Federation, issued this statement in part reading:

“The American Farm Bureau Federation is extremely disappointed in the Environmental Protection Agency’s announcement of its intention to reverse the environmentally conscious Navigable Waters Protection Rule, which finally brought clarity and certainty to clean water efforts. Farmers and ranchers care about clean water and preserving the land, and they support the Navigable Waters Protection Rule.

“Administrator Regan recently recognized the flaws in the 2015 Waters of the U.S. Rule and pledged not to return to those overreaching regulations. We are deeply concerned that the EPA plans to reverse the Navigable Waters Protection Rule, which puts the future of responsible protections at risk. We expected extensive outreach, but today’s announcement fails to recognize the concerns of farmers and ranchers.

Republican Leader of the House Agriculture Committee, Glen ‘GT’ Thompson issued the following:

“President Trump’s Navigable Waters Protection Rule provided long-overdue certainty and clarity for landowners affected by the scope of ‘Waters of the United States’ (WOTUS) jurisdiction. The process laid out in today’s announcement by the EPA and Army Corps is a step backward that will return farmers and ranchers to regulatory confusion. If the disastrous 2015 Obama-Biden Rule is any indication of where EPA is headed, rural America is in trouble. I implore the Biden Administration to retain the current WOTUS definition and to not engage in another massive land grab through government overreach.”

EPA wrote that the agencies involved in this decision have determined the Navigable Waters Protection Rule has been reducing clean water protections, particularly in arid states. The Department of Justice is filing a motion requesting the rule be remanded.

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.

To learn more about the definition of waters of the United States, click here.