On Monday, April 21, the proposed regulation on the Environmental Protection Agency’s (EPA) Waters of the United States was printed in the Federal Register officially starting the 91-day public comment period. The regulation seeks to clarify which waters are jurisdictional under the Clean Water Act (CWA), but concerns remain about EPA’s use of the “significant nexus” definition to determine what other waters are connected to traditional navigable waters under the CWA. 

The EPA is taking this action as the result of several court cases that have altered the Agency’s implementation of the current regulation including the 2001 Supreme Court decision in the Solid Waste Agency of Northern Cook County v. Army Corps of Engineers and the 2006 decision in Rapanos v. the United States. For several years, there have been legislative efforts in Congress to alter the definition of waters of the U.S., but the legislation has failed. NAWG opposes any efforts to remove the definition of “navigable” waters in the CWA.
Agriculture organizations, including NAWG, are reviewing the regulation to understand the implications for producer members. Adding to the uncertainty of the impact of the proposed regulation, the EPA has not finalized its Connectivity Report that outlines the science behind the connectivity of streams and wetlands relative to large water bodies, such as rivers, lakes, estuaries and oceans. The Connectivity Report is still undergoing review by the Scientific Advisory Board. NAWG will be developing comments on the waters of the U.S. regulation. Comments will be accepted until July 21 but may be extended due to several requests into the agency for a 6-month comment period. The EPA is undertaking outreach across the country to educate the public and take questions regarding the proposed regulation. Contact your regional EPA office for more information.