What you need to know about WOTUS

Tara Desmond

Jan 13, 2022  |  ICGA |  Conservation |  Legislation & Regulation

2021 Clean Water Rule

On November 18, 2021, the U.S. EPA and the U.S. Army Corps of Engineers released their proposed rule formally repealing the 2020 Navigable Waters Protection Rule (NWPR) and replacing it with an updated version of the U.S. EPA’s 1986 Waters of the U.S. (WOTUS) regulation.


View the full revised definition of waters in the U.S. here. The docket will be open for comments until February 7th.  “We’re asking that Illinois corn growers take action because of this (very real) threat and to be aware of how they can help impact their future,” says Megan Dwyer, Nutrient Loss Manager of IL Corn.


Take Action Before February 7th

IL Corn, along with most of the Illinois Ag Industry, has called on members to submit a comment to the agencies by using this link to e-mail them.  When submitting the comment, please RE-READ YOUR ENTIRE MESSAGE before sending.

Studies prove that it takes 50+ ORIGINAL messages to truly incite change in D.C.

Tips for personalization:

  • Personalize the VERY FIRSTPARAGRAPH.
  • Provide a specific example of HOW this topic impacts YOU
  • Broaden the scope: How does this impact your district/region?


Background Information – EPA’s Rule Placeholder

The EPA presented a 300 page “placeholder” rule so if their final rule is not accepted they will have many of their primary goals achieved in the placeholder.  They have commented that there will be zero impact to farmers which is untrue. 


Here is what their Step 1 is changing and the impacts:


The Step 1 proposed rule brings back the 1986 regulation, but also codifies the EPA’s 2008 post-Rapanos guidance. This guidance created the notorious significant nexus (Sig Nex) test. This is a case-by-case test that allows the agencies to regulate ephemeral features that “have a more than speculative or insubstantial” impact to a navigable water. The test allows the agencies to aggregate waters that are “similarly situated,” so they can expand their reach and capture entire watersheds.


In most cases, the Sig Nex test requires a Corps official to physically walk the property and jurisdictional determinations (JDs) can no longer be easily claimed using USGS mapping. Decisions on JDs are subjective, and landowners are beholden to an individual Corps official’s decision.


Efforts to eliminate the clarity provided by the NWPR on the Prior Converted Cropland exemption, proves that the agencies are not listening to the concerns of farmers. They are taking us back to the original (1993) PCC definition that created so much confusion. We have returned to a time when there was little clarity as to when a PCC can be “recaptured” and treated as jurisdictional.


Once the “Step 1” rule is complete, the agencies plan to work on a new rule that further broadens the WOTUS definition. Early in 2022, EPA and the Army Corps will hold regional roundtables to gather feedback from stakeholders on the forthcoming “step 2” rule.


Why we need action

Farmers finally had environmentally responsible regulations that brought clarity to clean water efforts and they deserve consistency and transparency.  The back and forth over water regulations casts uncertainty over farmers across the country and threatens the progress they’ve made to responsibly manage water and natural resources.


The proposed rule gives the federal government the ability to regulate ditches, ephemeral drainages or low spots on farmlands and pastures. That could make simple activities subject to regulations. Obtaining permits can take several months to several years and cost money. They can also be very expensive for farmers already struggling to make ends meet.