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ARA urges EPA to rely on science, keep improvements for waters of the US

The Agricultural Retailers Association is urging the EPA and Army Corps of Engineers to continue to rely on science as it revises the definition of ‘waters of the U.S.’

President and CEO Daren Coppock says there were significant improvements in the 2020 Navigable Waters Protection Rule compared to the 2015 WOTUS rule it replaced. Most notably, he says, is the use of the term navigable to bring certainty to Clean Water Act jurisdiction.

“The original Clean Water Act language refers to navigable waters which typically mean something you can float a boat on– that’s how you navigate on water. But, in practicality the way it has been enforced is that anything that has a hydrological connection to a navigable water also is subject to jurisdiction by the Clean Water Act,” he says. “…The 2015 rule stretched that definition so far that if you had an insect, for example, in a stream that was jurisdictional and if that insect went over to a mud puddle that wasn’t connected to the stream and put an egg in that mud puddle, the mud puddle is now subject to Clean Water Act jurisdiction. That’s the kind of stuff we were facing in the 2015 rule. We were very happy with the changes that they made both around what the scope of this things going to be, but also how you determine what’s in and what’s out. That was a major change in the 2020 rule that we were very supportive of.”

He says another improvement was the way inclusions and exclusions are defined.

“In the Navigable Waters Protection Rule, the default assumption is that it’s not subject to Clean Water Act jurisdiction unless it meets one of the qualifications specifically listed in the new rule,” he says. “That gave people a lot more certainty about whether or not their land is subject to jurisdiction or not.”

Coppock tells Brownfield EPA hosted a briefing with ag groups today.

“They said the reason they were pulling back the rule and reconsidering it was because the 2020 rule was causing damage,” he says. “…Well, the way they’re defining damage is whether or not the 2020 rule released land from jurisdiction or not.”

He says ARA will be following the issue closely and communicate with EPA that there needs to be a different standard for defining damage.

Despite the concerns, Coppock says he is hopeful based on EPA Administrator Michael Regan’s track record and statements that science “will rule the day” as EPA reviews the rule, and that the agencies will seek to hear from all stakeholders to find practical solutions.