EPA’s Move to Reverse the Navigable Waters Protection Rule Put a New Spin on an Old Threat to Farmers

On June 9, 2021, the U.S. Environmental Protection Agency (EPA) and Department of the Army (the agencies) announced their intent to revise the definition of “waters of the United States” (WOTUS), and reverse the Navigable Waters Protection Rule (NWPR) currently in place. At the same time, the Department of Justice is filing a motion requesting remand of the rule.

This action reflects the agencies’ intent to initiate a rulemaking process to develop a new rule that defines WOTUS and is informed by stakeholder engagement, as well as the experience of implementing the pre-2015 rule, the Obama-era Clean Water Rule, and the Trump-era Navigable Waters Protection Rule. The agencies have stated their 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. 

Unfortunately, nothing in the agencies’ press release indicates they are looking for a middle ground. Instead, these seem to signal a desire to repeal and replace NWPR and return to a 2015-type rule with a focus on ephemeral features, and adjacent wetlands, which gives us a great deal of concern that we will once again see a confusing, unworkable rule that overburdens farmers with federal regulation.

In general, Farm Bureau is disappointed in the EPA’s announcement of its intention to reverse the Navigable Waters Protection Rule; a rule which finally brought clarity and certainty to clean water efforts and ended years of debate and litigation related to WOTUS. Farmers care about clean water and preserving the land, and rely on a healthy environment to raise crops and livestock.

Particularly in the Chesapeake Bay Watershed, we know how to identify, work towards, and achieve water quality goals. We call on EPA to respect the existing statute, recognize the burden that overreaching regulation places on farmers, and avoid reopening and litigating the regulatory land grab that was the 2015 WOTUS Rule.

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