EPA Announces Plans to Revert Back to Pre-Obama WOTUS Rule, Public Input Meetings Set for August

EPA announced the Biden administration is proceeding in its effort to craft a “durable definition” of Waters of the United States (WOTUS) on Friday, and EPA wants farmers and ranchers to provide input as the agency works to create the rule.

EPA says the agency is reverting to the WOTUS rule dating back to before the Obama administration changed the definition, which caused an uproar for agricultural groups who said the rule had expanded to create too loose of a definition. The pre-Obama era rule, which EPA says had been in place for decades, will be the basis of crafting the new rule. Along with the U.S. Army Corps of Engineers (USACE), EPA says the administration will get input from various stakeholders, including that from agriculture, and from there, it will propose revisions and changes to WOTUS.

“We are committed to crafting an enduring definition of WOTUS by listening to all sides so that we can build on an inclusive foundation,” said EPA Administrator Michael S. Regan. “Uncertainty over the definition of WOTUS has harmed our waters and the stakeholders and communities that rely on them. I look forward to engaging all parties as we move forward to provide the certainty that’s needed to protect our precious natural water resources.”

EPA says the “engagement strategy” process will start next month, as it plans to hold a series of public meetings to be held virtually. The public will be able to give verbal input during that time. 

“We are going to be doing public meetings, all through the month of August,” EPA assistant administrator Radhika Fox told Clinton Griffiths on AgriTalk. “We're going to be visiting communities around the country to understand how the implementation of waters have gone over the past several decades, what's worked, what hasn't.”

The schedule of WOTUS Virtual Public Meetings includes: 

• August 18, 3-5 p.m. ET
• August 23, 1-3 p.m.ET
• August 25, 3-5 p.m. ET
• August 26, 6-8 p.m. ET
• August 31, 3-5 p.m. ET

You can sign up to attend one of the meetings here. 

“We really believe that in order to develop a definition of Waters of the United States, that really protect our nation's waters, but is also clear and implementable for stakeholders all around the country, that we have to listen and learn from the lived experience of a range of stakeholders, including the agricultural community,” added Fox.

USDA is also encouraging farmers and ranchers to weigh in. 

“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. 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,” said U.S. Secretary of Agriculture Tom Vilsack.

The Obama administration received intense push back from agricultural groups when it changed WOTUS in 2015. EPA and USACE issued the rule that gave EPA broad jurisdiction. Farmers and ranchers said under the rule, WOTUS would have jurisdiction over streams, with some even saying under the rule, puddles on farms would qualify. The ruling drew litigation and challenged in court, and it remained tangled in injunctions.

The Trump administration wasted no time in reversing what it called government overreach, eliminating the changes made in the Obama-era rule.

Within the first six months of Biden taking office, the new administration announced its intent to change the rule once again. However, this time, Fox says agriculture will be part of the rule-making process.

“We know that farmers are leaders in environmental stewardship, and that getting to a common-sense implementable definition of waters of the United States that also protect our nation's waters is so essential to the agricultural community. So, that's what we're announcing today,” Fox said on AgriTalk.

Fox says EPA and USACE intent to do two rulemakings, which include reverting back to the pre-2015 rule, using that as a foundation to craft the new rule.

“The first will be a forthcoming foundational rule that would restore the definition of Waters of the United States that has been in place for decades until 2015,” said Fox. “And we're going to be updating that to be consistent with relevant Supreme Court decision. We're also going to undertake a second separate rulemaking process that would build on this regulatory foundation to develop as I said, a durable definition of Waters of the United States for generations to come. So, it’s a big day at EPA.”