EPA Seeks to Re-establish Pre-2015 Definition of “Waters of the United States” (WOTUS)

DTN writer Todd Neeley reported this week that, “The Navigable Waters Protection Rule would be repealed and replaced with pre-2015 definitions of waters of the U.S. in a proposal released by EPA and the U.S. Army Corps of Engineers on Thursday.

“It is the first step in eventually replacing the Trump-era rule with a new rule sometime next year.

Returning to the pre-2015 rule means a return to definitions expanded by EPA following the 2006 Supreme Court ruling in Rapanos v. U.S., including the so-called ‘significant nexus’ determination that was a feature of the 2015 rule.

Mr. Neeley noted that, “Significant nexus is establishing a scientific connection between smaller water bodies, such as tributaries, and larger, more traditional navigable waters such as rivers. This then makes the smaller water bodies jurisdictional and subject to the Clean Water Act [CWA].

“Significant nexus determinations in the 2015 rule were a concern to farmers, ranchers and other landowners who feared the expansion of federal jurisdiction onto private lands.”

The DTN article added that, “Along with a release of the proposed repeal and replacement, the EPA released a 177-page economic analysis of the proposal that will be open for a 60-day public comment period once published in the Federal Register.”

And Timothy Eggert reported this week at FarmWeekNow Online that, “Both the Obama and Trump administrations crafted their own WOTUS rules, which for years were tangled in litigation before being withdrawn by later administrations.

“The Obama-era rule sought to broaden the federal government’s CWA jurisdiction, while the Trump-era rule, called the ‘Navigable Waters Protection Rule,’ narrowed the government’s scope. The Biden administration earlier this year said it would reverse and revise the Trump-era rule.”