The Biden administration has reiterated its pledge to get input from a wide variety of stakeholders, including the agricultural industry, on how it plans to define “waters of the U.S.” in the Clean Water Act as it announced a series of upcoming “community engagements.”

In a news release Friday, the Environmental Protection Agency and Department of the Army, which includes EPA’s regulatory partner the Amy Corps of Engineers, said they would host virtual sessions in August and — potentially — September to gather feedback on their efforts to tackle a rewrite of the controversial definition.

“It is vital that farmers and rural Americans have a seat at the table and a voice in this process so that the rule responds to concerns and realities on the ground,” Ag Secretary Tom Vilsack said in the release. “The engagement in the coming months is important and I encourage all stakeholders to provide their experiences and views in order to help shape future policy.”

The agencies hope to be able to craft a “durable definition” that can survive potential court challenges and will be accepted by future administrations.

“The agencies intend to revise the definition of WOTUS following a process that includes two rulemakings,” they said Friday. “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.’”

The 2015 Obama rule was immediately subject to litigation that soon resulted in the country being almost evenly split between states where it applied and those where it did not. The Trump administration rewrote the rule, which itself was subject to a series of lawsuits, but a federal judge in South Carolina recently ruled the Trump rule could remain in place while the Biden administration comes up with its own regulations.

The National Pork Producers Council issued a short statement on the announcement, saying it “looks forward to constructively engaging the administration to ensure the voice of agriculture, the respect for private property rights and the practical needs of farmers to produce food are understood.”

Jim Murphy, director of legal advocacy at the National Wildlife Federation, said he thinks the administration is taking the right approach.

“Our hope out of this process is we’re able to get an enduring solution to a problem that’s been vexing a bunch of stakeholders for a couple of decades now,” Murphy said. The victims of the uncertainty, he said, include the nation’s waters and wildlife, but also communities nationwide.

EPA already has been doing a lot of outreach, he said. EPA Administrator Michael Regan has said repeatedly he wants input from the ag industry, which supported his choice to be administrator. EPA held a stakeholder call Friday for ag industry representatives, Agri-Pulse has learned. 

However, Mark Ryan - a former longtime EPA lawyer who wrote the 2015 rule - said the definition sparks such wide disagreement that the agencies will find it hard to come up with something that can stand the test of time.

“It’s an incredibly difficult needle to thread,” he said of the WOTUS definition.

“I don’t think you can wholly satisfy one perspective or another,” Murphy said. But the rule has “got to have enough broad buy-in that it’s going to survive administrations down the road.”

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He said he hopes whatever the agencies come up with has “enough buy-in and acceptance” that it won’t be first on the list of regulatory targets for a new administration.

It’s not clear how long it will take for a new definition to emerge. Ryan said he’s skeptical the administration can get something out swiftly. “If they got it out quickly, I’d be surprised,” he said.

The meetings, which are all virtual, will take place as follows (all times EDT p.m.):

  • Aug. 5 (1-2:30): Federalism, with state and local government officials
  • Aug. 19 (2-4): Tribal consultation webinar
  • Aug. 24 (4-6): Tribal consultation webinar
  • Aug. 18 (3-5): Public meeting
  • Aug. 23 (1-3): Public meeting
  • Aug. 25 (3-5): Public meeting
  • Aug. 26 (6-8): Public meeting
  • Aug. 31: (3-5): Public meeting
  • Sept. 2 (2-4): Potential public meeting

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