EPA and the Army Corps of Engineers are proposing to interpret “waters of the U.S.” in the Clean Water Act based on pre-2015 regulations, guidance and Supreme Court decisions, including former Supreme Court Justice Anthony Kennedy’s “significant nexus” test.

“The proposed rule would maintain the longstanding exclusions of the pre-2015 regulations as well as the exemptions and exclusions in the Clean Water Act on which the agricultural community has come to rely,” the agencies said in a press release.

The proposal, released ahead of publication in the Federal Register, says EPA and the Corps are returning to “longstanding” 1986 Corps regulations. The WOTUS definition would include: 

  • “traditional navigable waters, interstate waters, and the territorial seas, and their adjacent wetlands;
  • “most impoundments of ‘waters of the United States’;
  • “tributaries to traditional navigable waters, interstate waters, the territorial seas, and impoundments that meet either the relatively permanent standard or the significant nexus standard;
  • “wetlands adjacent to impoundments and tributaries, that meet either the relatively permanent standard or the significant nexus standard
  • “and ‘other waters’ that meet either the relatively permanent standard or the significant nexus standard."

The “relatively permanent standard” “means waters that are relatively permanent, standing or continuously flowing and waters with a continuous surface connection to such waters,” the proposal said, while the “significant nexus standard” “means waters that either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial seas.”

“With these amendments to the 1986 regulations, the proposed rule is within the proper scope of the agencies’ statutory authority and would restore and maintain the chemical, physical, and biological integrity of the nation’s waters," the proposal said.

The Biden administration had said previously that it planned to issue a “foundational rule” restoring pre-2015 regulations and guidance while it works on a new WOTUS rule. Neither the 2015 Obama rule or the 2020 Trump rule were well received in the courts, with the Trump rule vacated earlier this year.

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Reaction was predictably mixed.

“I commend the Biden administration for taking this necessary and important step toward a more enduring definition for waters of the United States,” Senate Environment and Public Works Committee Chairman Tom Carper of Delaware said. “Doing so paves the way for EPA and the Army Corps to develop a definition that provides certainty and better protects our nation’s precious waters and wetlands, while also supporting economic opportunity and industries that depend on clean water. We deserve a WOTUS rule that can stand the test of time and I’m encouraged by the administration’s thoughtful approach here.”

But EPW Ranking Member Shelley Moore Capito, R-W.Va., said the proposal “affirms EPA’s intent to create a rule defining WOTUS, which will likely be even more stringent than the Obama administration’s 2015 WOTUS rule. Farmers, ranchers, manufacturers, private landowners, and other stakeholders should expect reduced regulatory certainty and a continued lack of transparency in their livelihoods.”

The National Cattlemen's Beef Association and Public Lands Council also were critical of the move.

The Trump EPA's Navigable Waters Protection Rule "was a solution to the disastrous 2015 ‘Waters of the United States’ (WOTUS) rule that vastly expanded federal jurisdiction over small, isolated water features," said NCBA Chief Environmental Counsel Scott Yager. "NCBA supported the NWPR and was disappointed when it was struck down in court.”

Yager said that "with the Biden administration announcing their intent to craft their own WOTUS rule, NCBA will remain engaged with (EPA) to ensure that any future rulemaking respects the needs of American cattle producers and their right to make investments in their land and care for their cattle.”

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