EPA announces plans to revert to foundational WOTUS while it works to refine new rule
Today, the U.S. Environmental Protection Agency and Army Corps of Engineers announced plans to engage the public as it works to revise its definition of “waters of the United States.” The Trump administration had replaced an Obama-era WOTUS rule that many in the ag sector said represented federal overreach with a more palatable Navigable Waters Protection Rule (NWPR). The measure lifted federal jurisdiction over some small streams and ditches, but the measure was not codified into law.
Consequently, the Biden administration is again working to rewrite the rule, unnerving the ag sector. EPA and Army say their intent is to develop “a reasonable, effective, and durable definition of WOTUS that protects public health, the environment, and downstream communities while supporting economic opportunity, agriculture, and other industries.”
To do so, the agencies plan to revise the definition of WOTUS by following a process that includes two rulemakings. In a press release issued today, EPA explained, “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.”
EPA and Army will hold a series of engagement opportunities, including the chance for stakeholders and the public to provide written recommendations and a series of public meetings in August to hear perspectives on both rules. The agencies are also initiating Federalism and Tribal consultations for the foundational rules. The agencies also plan to convene 10 “regionally focused and inclusive roundtables” during the coming fall and winter to discuss their experience and the definition of WOTUS.
AgriTalk spoke with Radhika Fox, assistant administrator for the office of water at EPA, about the announcement today. Listen here.
Bottom line: An updated WOTUS is likely a long way off.
