WASHINGTON, D.C. — The Biden administraton on Thursday announced a proposed rule that would reinstate the pre-2015 definition of “waters of the United States” under the Clean Water Act, flushing President Trump’s Navigable Waters Protection Rule down the drain.
The Navigable Waters Protection Rule, or NWPR, reined in the Obama administration’s 2015 waters of the U.S. rule, known as WOTUS. It greatly expanded federal jurisdiction over bodies of water.
During the Trump administration, the Environmental Protection Agency and the U.S. Army Corps of Engineers repealed the 2015 WOTUS rule and re-instated the pre-2015 regulations.
In 2020, the agencies redefined the term “navigable waters" with the Navigable Waters Protection Rule, categorically excluding certain features from the definition, including “ephemeral streams” — temporary streams resulting from precipitation.
In June, the agencies announced their intent to revise the definition of WOTUS, saying they had determined the NWPR significantly reduced clean water protections.
The new proposed rule would support a stable implementation of “waters of the U.S” while the agencies continue to consult with stakeholders on the implementation of WOTUS and future regulatory actions, the agencies said.
Agricultural groups, however, say the agencies’ action to replace the NWPR is a mistake.
The American Farm Bureau Federation said the EPA is returning to an overly complicated interim water rule.
“Overreaching regulations create major permit backlogs for the federal government and result in long delays for farmers and ranchers who are working to keep America fed,” said Zippy Duvall, AFBF president.
Farm Bureau is particularly concerned EPA is bringing back the “significant nexus” test. That test determines whether the water in question affects other navigable waters.
“This case-by-case test threatens to unfairly regulate large areas of private land miles from the nearest navigable water,” he said.
It’s troubling that EPA is putting a framework in place before completing the promised stakeholder engagement, he said.
The National Cattlemen’s Beef Association also opposes the repeal of the NWPR.
“The NWPR was a solution to the disastrous 2015 ‘waters of the United States’ rule that vastly expanded federal jurisdiction over small, isolated water features,” said Scott Yager, NCBA Chief Environmental Counsel.
The National Corn Growers Association said the NWPR provided long overdue certainty and clarity for farmers affected by the scope of WOTUS.
“We are extremely disappointed that this administration is taking us backward by removing a rule that has provided certainty...,” said Chris Edgington, NCGA president.
Kent Fountain, the National Cotton Council chairman, said the NWPR needs an opportunity to work because it provides agriculture a common sense and understandable rule.
It “not only ensures environmental and human health but protects farmland and the right to conduct farming operations in a responsible and economically sustainable manner with flexibility,” he said.
The rule removed many water features from federal control, including those that contain water only in response to rainfall, groundwater, many farm and roadside ditches, previously converted cropland and stock watering ponds, he said.