EPA, Army take action to reestablish pre-2015 definition of WOTUS

The U.S. Environmental Protection Agency (EPA) and U.S. Department of the Army (the agencies) last week announced a proposed rule to re-establish the pre-2015 definition of “waters of the United States” (WOTUS).

The agencies say the action will establish a durable definition of WOTUS that protects public health, the environment, and downstream communities while supporting economic opportunity, agriculture, and other industries that depend on clean water.

“In recent years, the only constant with WOTUS has been change, creating a whiplash in how to best protect our waters in communities across America,” said Michael S. Regan, EPA Administrator. “Through our engagement with stakeholders across the country, we’ve heard overwhelming calls for a durable definition of WOTUS that protects the environment and that is grounded in the experience of those who steward our waters. Today’s action advances our process toward a stronger rule that achieves our shared priorities.”

The proposed rule would maintain the longstanding exclusions of the pre-2015 regulations as well as the exemptions and exclusions in the Clean Water Act. The proposed rule would also scrap the Navigable Waters Protection Rule, which was finalized in 2020.

Many farm groups oppose the rule, saying it is a major overreach.

“AFBF is disappointed 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. We are particularly concerned EPA is bringing back the significant nexus test. This case-by-case test threatens to unfairly regulate large areas of private land miles from the nearest navigable water,”  said Zippy Duvall, president of the American Farm Bureau Federation.

The agencies will be hosting virtual public hearings on the proposed rule on January 12, 2022 from 10 AM to 1 PM Eastern; January 13, 2022 from 2 PM to 5 PM Eastern; and January 18, 2022 from 5 PM to 8 PM Eastern.

Public comment on the proposed rule is 60 days beginning on the date it is published in the Federal Register. For more information on submitting a written comment on the proposal or to register for the virtual public hearings on the proposed rule, see www.epa.gov/wotus.

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