The U.S. Environmental Protection Agency and U.S. Department of the Army intend to revise the definition of the waters of the U.S. – or WOTUS - following a process that includes two rulemakings. In doing so, the agencies say they intend to support “economic opportunity, agriculture and other industries.”
In an announcement Friday, the agencies explain a forthcoming foundational rule would restore the regulations defining WOTUS that were in place for decades until 2015, with updates to be consistent with relevant Supreme Court decisions. A separate, second rulemaking process would refine this regulatory foundation and establish an updated and durable definition of “waters of the United States.”
Under the Obama administration in 2015, the EPA and the U.S. Army Corps of Engineers issued a new WOTUS rule that gave EPA broad jurisdiction over U.S. waters to include upstream waters and intermittent and ephemeral streams. The WOTUS rule was immediately challenged in court and subject to several preliminary injunctions.
The Trump administration repealed the 2015 rule in 2019. In June 2020, the administration replaced it with the new Navigable Waters Protection Rule. Under the Biden administration, the agencies explain, “Upon review of the Navigable Waters Protection Rule, the agencies determined that the rule is significantly reducing clean water protections.”
“We are committed to crafting an enduring definition of WOTUS by listening to all sides so that we can build on an inclusive foundation,” says EPA Administrator Michael Regan. “Uncertainty over the definition of WOTUS has harmed our waters and the stakeholders and communities that rely on them. I look forward to engaging all parties as we move forward to provide the certainty that’s needed to protect our precious natural water resources.”
The agencies say the announcement marks an important step in the agencies’ efforts to restore protections and write a rule to define WOTUS that is “grounded in science and the law, emphasizes effective implementation, and prioritizes collaborative partnerships with states, Tribes, local governments, and stakeholders. To help ensure that EPA and Army hear from diverse perspectives, future engagement activities will be developed in coordination with the U.S. Department of Agriculture.”
In response, Secretary of Agriculture Tom Vilsack says, “It is vital that farmers and rural Americans have a seat at the table and a voice in this process so that the rule responds to concerns and realities on the ground. The engagement in the coming months is important and I encourage all stakeholders to provide their experiences and views in order to help shape future policy.”
EPA and Army also announced a series of engagement opportunities, including an opportunity for stakeholders and the public to provide written recommendations and a series of public meetings in August to hear perspectives on both rules. In addition, the agencies are initiating Federalism and Tribal consultations for the foundational rule. The agencies also intend to host a series of dialogues with state and Tribal co-regulators this fall to discuss both rulemakings.
To honor its commitment to listening and learning from diverse perspectives, the agencies plan to convene ten regionally focused and inclusive roundtables during the upcoming fall and winter. These roundtables will allow a full range of stakeholders to engage and discuss their experience with definitions of WOTUS—including what has worked and what has not within their geographic areas. The roundtables will provide opportunities to discuss geographic similarities and differences, particular water resources that are characteristic of or unique to each region, and site-specific feedback about implementation.
For more information on submitting written recommendations or to register for the public meetings, see www.epa.gov/wotus.
Following the announced, the National Pork Producers Council says it “looks forward to constructively engaging the administration to ensure the voice of agriculture, the respect for private property rights and the practical needs of farmers to produce food are understood.”
During debate of the minibus appropriations package in the House July 27, House Democrats blocked two amendments offered by Rep. Jim Hagedorn, R-Minn., and Mariannette Miller-Meeks, R-Iowa, that would have prevented funds from being used to repeal, revise or replace the Trump-era NWPR.
On the Senate side, on July 27, Republican senators on the Senate Environment and Public Works Committee introduced legislation to codify the NWPR.
“I’ve worked over the years to put a stop to water rules that would be unworkable for Iowa real estate developers, farmers and landowners,” says Sen. Chuck Grassley, R-Iowa. “We need to have a real law on the books so that all Americans can move forward without burdensome regulations.”
In a recent floor speech, Grassley notes under the old WOTUS rule, 97% of Iowa’s land would have been subject to jurisdiction under the Clean Water Act.
“EPA’s release about its intention to overturn the Navigable Water Protection Rule mentions that 333 projects would have required permits by the Obama WOTUS rule that did not need government paperwork under the Navigable Water Protection Rule. This is exactly the point,” Grassley shares. “If you are simply moving dirt to level off a low point in a field, should that need a federal permit?”
Earlier this year, Grassley joined Sen. Joni Ernst, R-Iowa, and 24 other colleagues on a Senate resolution that expressed the need for the U.S. Senate to stand with farmers, ranchers and other important stakeholders by supporting the Trump Administration’s Navigable Waters Protection rule, which replaced the Obama-era WOTUS rule.