The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) announced last week a proposal to repeal the navigable waters protection rule (NWPR), which provided regulatory certainty to farmers and ranchers and limited federal overreach. The main purpose of the proposal is to remove NWPR from the Code of Federal Regulations, formally reverting regulations back to the 1986 rule.
Since 1986, the federal government has been attempting to define what water features count as a “water of the U.S.” (WOTUS) for the purpose of environmental regulation under the Clean Water Act of 1972. In 2015, EPA and the Corps finalized a widely overreaching WOTUS definition that placed stock ponds, ephemeral features, grassed waterways and other isolated bodies of water that impact agriculture under federal control. The 2020 NWPR was a major improvement and limited federal jurisdiction to substantial bodies of water.
NCBA defended NWPR in court on numerous occasions before it was struck down by a U.S. District Court in Arizona in August 2021. As a result of the court decision, EPA is relying on the pre-1986 rules, meaning cattle producers have experienced three different WOTUS definitions under the law in the past six years.
NCBA and KLA will remain actively engaged on this issue. Stakeholders have 60 days to comment on the repeal proposal. Both organizations are reviewing the proposal and will submit comments.