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EPA Administrator Michael Regan vows to include ag input in new WOTUS regulations

“The agencies will not be reinstating either the (Navigable Waters Protection Rule) or the Clean Water Rule,” Regan said, reiterating the administration's desire to make the rule “durable” — in other words, able to survive different administrations and inevitable court challenges.

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Environmental Protection Agency Administrator Michael Regan said farmers and ranchers will be at the table as the Biden administration tries to work through a new water policy. Haley Miles / Grand Vale Creative LLC

Environmental Protection Agency Administrator Michael Regan says a proposal to restore regulations defining "waters of the U.S." to those that were in place before the Obama administration's 2015 rule could be issued by November, with another proposal redefining WOTUS to follow a year after that.

Speaking to attendees at the National Association of State Departments of Agriculture’s annual meeting in Louisville, Kentucky, on Sept. 20, Regan offered a fresh timeline and said the Biden administration plans to craft its own regulation, using lessons learned from the 2015 Clean Water Rule and the Trump administration's 2020 Navigable Waters Protection Rule, which has been vacated by a federal court.

In July, EPA and the Corps said they would first issue a "foundational rule" to restore pre-2015 regulations, "with updates to be consistent with relevant Supreme Court decisions." A separate rulemaking process would follow "to refine this regulatory foundation and establish an updated and durable definition of 'waters of the United States,'" the agencies said.

“The agencies will not be reinstating either the (Navigable Waters Protection Rule) or the Clean Water Rule,” Regan said, reiterating the administration's desire to make the rule “durable” — in other words, able to survive different administrations and inevitable court challenges.

He also said that in addition to protecting water resources, any new regulation must also provide "clarity” and “certainty” for farmers.

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He reassured the audience that exemptions for "normal farming" activities and prior converted cropland would continue.

“Normal farming, silviculture and ranching activities, as defined by the Clean Water Act section 404, that could take place in a jurisdictional waterway or wetland, will not require a permit,” Regan said.

Regan again committed to making sure the agriculture community will be able to offer input as the administration rewrites the rule.

"Any inclination of opening (the rule) back up or modifying it I think is going to cause a little bit of heartburn," NASDA President and Kentucky Commissioner of Agriculture Ryan Quarles told Agri-Pulse. "We're fortunate that the administrator said that he does want to make sure he is inclusive and make sure that there's farmers and ranchers at the table. Right now, that's all we can ask for."

Determining the scope of "waters of the U.S." under the Clean Water Act has been contentious for decades, but especially since former President Barack Obama’s EPA issued a new definition in 2015. The ag community was largely against the effort, as demonstrated by the American Farm Bureau Federation's “ditch the rule” campaign to push back against it.

AFBF President Zippy Duvall said after Regan's remarks that farmers need both clarity and a rule that can stand the test of time durable because "they feel like a ping-pong (ball) going back and forth” when responding to different regulations.

The agency has already held several listening sessions so stakeholders can weigh in about the rewrite. Regan noted the agency is planning more talks for this fall and regional roundtables this winter.

The EPA and Army Corps of Engineers announced their plan in June to revise the definition. Regan said in April both the Obama or Trump administration rewrites "did not listen to the will of the people.”

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