The Biden administration on Thursday floated returning to a broader interpretation of the federal government’s authority under the Clean Water Act (CWA) while agencies work to replace the Trump-era rule.

The new rule, proposed by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers, would re-establish the definition of “waters of the United States” to what was in place from 1986 to 2015.

“In recent years, the only constant with WOTUS has been change, creating a whiplash in how to best protect our waters in communities across America,” EPA Administrator Michael S. Regan said in a statement.

Michael Regan

Michael Regan

“Continuity with the 1986 regulations will minimize confusion and provide regulatory stability for the public, the regulated community, and the agencies, while protecting the nation’s waters,” the agencies said.

American Farm Bureau Federation President Zippy Duvall in a statement said the organization is “disappointed” in the agencies’ decision.

“Overreaching regulations create major permit backlogs for the federal government and result in long delays for farmers and ranchers who are working to keep America fed,” Duvall said.

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Obama and Trump administrations crafted their own WOTUS rules, which for years were tangled in litigation before being withdrawn by later administrations.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.

Duvall took issue with EPA reinstating the significant nexus test, which “threatens to unfairly regulate large areas of private land miles from the nearest navigable water,” Duvall said.

Zippy Duvall

Zippy Duvall

“It’s troubling that EPA is putting a framework in place before completing the promised stakeholder engagement,” he added. “Administrator Regan pledged to listen to the needs of farmers and ranchers and committed to a rule that is not overly burdensome. We urge him to stay true to his word.”

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”
  • “other waters” that meet either the relatively permanent standard or the significant nexus standard”

The agencies said they interpret relatively permanent standard to mean “waters that are relatively permanent, standing or continuously flowing and waters with a continuous surface connection to such waters.”

The significant nexus standard would mean “waters that are 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.”

The proposed rule would also retain a longstanding exclusion for prior converted cropland, albeit modified to match language first introduced and codified in 1993 “providing certainty to farmers seeking to conserve and protect land and waters pursuant to federal law,” the agencies said.

While the NWPR retained the exclusion, it also largely broadened the definition of what qualifies as prior converted cropland to an area that was not used for “agricultural purposes” in the last five years.

The proposed rule would amend that definition and require landowners to obtain a USDA prior converted cropland certification to receive the exclusion.

Public hearings on the proposed rule are set for Jan. 12, 13 and 18. Illinois Farm Bureau plans to participate in those meetings, said Lauren Lurkins, IFB director of environmental policy.