The saga isn’t over yet: The definition of WOTUS is back on the table again.
The Environmental Protection Agency (EPA) and Department of the Army announced in early June their intent to review and revise the definition of WOTUS (waters of the United States). WOTUS has been a highly contested definition over the years, with a flurry of lawsuits that seem to be perpetually in the works.
In June 2020, the Trump administration’s revisions to the Clean Water Act (CWA) went into effect, which redefined “navigable waters,” or WOTUS, under the Navigable Waters Protection Rule (NWPR).
“After reviewing the Navigable Waters Protection Rule as directed by President [Joe] 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.
The agencies said the rule is significantly reducing clean water protections, especially 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.”
The Department of Justice filed a motion requesting remand of the rule and the agencies will begin a new rulemaking process that restores the protections prior to the 2015 WOTUS implementation.
The agencies said the new rule will be guided by the following considerations:
• Protecting water resources and communities consistent with the CWA;
• The latest science and effects of climate change on waters;
• A practical implementation for states and Tribes; and
• Experiences and input from landowners, agricultural producers, Tribes, local governments, environmental groups, community organizations, and disadvantaged communities with environmental justice concerns.
In response to the announcement, the American Farm Bureau Federation (AFBF) expressed their disappointment. “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,” AFBF President Zippy Duvall said in a statement.
“Clean water and clarity are paramount, and that is why farmers shouldn’t need a team of lawyers and consultants to farm.”
The National Cattlemen’s Association (NCBA) and Public Lands Council (PLC) also shared their dissatisfaction over the announcement.
“Livestock producers, who manage both their private lands and safeguard public lands, have a deep-seated commitment to protecting and improving our waterways—which is why it is so deeply frustrating when EPA opts for government overreach instead of effective, proven public-private partnerships,” said NCBA Executive Director of Natural Resources and PLC Executive Director Kaitlynn Glover.
“Any changes to the NWPR that limit or restrict agricultural exclusions, or regulate waterbodies on farm and ranchland, will hinder ranchers’ abilities to continue making vital investments in their land that restore waterways, conserve riparian areas, and protect wildlife habitat.”
NCBA and PLC said they will engage with EPA as the revisions move forward to ensure the agency respects private property rights and does not “squeeze out Western communities.”
The CWA prohibits the discharge of pollutants from a source to navigable waters unless otherwise authorized under the act. WOTUS is not actually defined by the CWA, but has been defined by EPA and the Army since the 1970s.
NWPR outlined four categories of waters under WOTUS. The categories included territorial seas and traditional navigable waters; tributaries; lakes, ponds and impoundments of jurisdictional waters; and adjacent wetlands.
Several states, Tribes and other organizations filed suit against the Trump administration’s NWPR, claiming federal protections would be stripped for millions of streams and wetland acres.
Earlier this summer, Regan testified before the House Appropriations subcommittee, stating the agency would not return to Obama-era definition of WOTUS under the CWA. However, he did note that although there was no intention of returning to the original Obama WOTUS, “we don’t necessarily agree with everything that was in the Trump administration’s version.” — Anna Miller, WLJ managing editor