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ARA Encourages EPA, Department of the Army to Continue to Rely on Science and Common Sense in any WOTUS Changes

Jun 09 2021

Agricultural Retailers Association President and CEO Daren Coppock issued the following statement in response to the announcement by the U.S. Environmental Protection Agency (EPA) and Department of the Army (the agencies) on their intent to revise the definition of “waters of the United States” (WOTUS):

"There were some significant improvements in the Navigable Waters Protection Rule (NWPR) compared to the 2015 WOTUS rule it replaced that I hope can be preserved in this review by EPA. One was simply the title; the Clean Water Act (CWA), which provides the statutory authority for protecting waters of the United States, refers specifically to navigable waters. Over time that definition has expanded from just bodies of water that can float a boat to any water resource that is hydrologically connected to a navigable water, leading to nearly 95 percent of the United States considered included in the regulations. The 2015 WOTUS rule stretched that linkage to the limit of credibility, grossly and inappropriately expanding the waters included under CWA jurisdiction. The NWPR utilizes a much more practical approach through a cooperative federalism system where the state agencies are co-equal regulatory partners with the EPA. This setup pulls back on mission creep and gives the states a more meaningful role in regulating their waters.

"Another improvement was the way inclusions and exclusions are defined. Under the 2015 WOTUS rule, a water was assumed to be subject to CWA jurisdiction unless it met a qualification on a list of exceptions. In other words, unless you’re specifically out – you’re in. The NWPR takes the opposite approach – waters are assumed to not be jurisdictional unless they meet one of the qualifications on a list of inclusions. If you’re not specifically in – you’re out. The result of this change removed a lot of uncertainty for landowners who needed to know the status of their property features. Under WOTUS they would have likely had to hire a professional engineer to make a technical determination; under the NWPR they could rely on the general exclusion unless their property qualified under one of the specific inclusions.

"The NWPR also more closely follows U.S. Supreme Court precedent and the jurisdiction laid out in federal law by Congress.

"I’m hopeful, based on Administrator Regan’s track record and statements, that science will rule the day as EPA reviews this rule, and that the agencies will seek to hear from all stakeholders, including property owners, and try to find practical solutions that are in the interest of all concerned and consistent with the enabling statute."

Click below to read the announcement.