The American Farm Bureau Federation (AFBF) submitted recommendations last week on the definition of “Waters of the United States” (WOTUS). The comments were filed with the Environmental Protection Agency (EPA) and the Army Corps of Engineers. In June 2021, the EPA announced its intent to revise the definition of WOTUS and solicited pre-proposal recommendations.
In the recommendations, AFBF expresses disappointment in EPA’s decision to replace the Navigable Waters Protection Rule (NWPR) and explains why the rule should be left in place:
“To correct the fatal flaws in the 2015 WOTUS Rule, the Agencies carefully struck ‘a reasonable and appropriate balance between Federal and State waters’ that is ‘intended to ensure that the agencies operate within the scope of the Federal government’s authority over navigable waters.’ The NWPR also brought an end to all of the uncertainty created by the Agencies’ aggressive assertions of jurisdiction under prior definitions by including ‘categorical bright lines’ to improve clarity and predictability.”
“The Agencies can ensure clean water for all Americans through a blend of the CWA’s regulatory and non-regulatory approaches, just as Congress intended. It is unnecessary (and unlawful) to define non-navigable, intrastate, mostly dry features that are far removed from navigable waters as ‘waters of the United States’ to try to achieve the Act’s objective.”
In April, EPA Administrator Michael Regan told Congress he does not intend to go back to the 2015 definition of WOTUS. He said during a House Appropriations Subcommittee budget hearing, “We don’t have any intention of going back to the original Obama Waters of the U.S. verbatim.”