September 2, 2021
The U.S. District Court in Arizona struck down the Trump administration’s 2020 Navigable Waters Protection Rule, again casting uncertainty on farmers as it relates to jurisdiction of water features on their farms. The ruling issued Aug. 30 vacated the NWPR, signaling an end to the definitions put in place by the Trump administration as the Biden administration also begins to rewrite its own version of how to define federal water.
Under the Trump-era rules, the Environmental Protection Agency and Army Corps of Engineers had jurisdiction to regulate clearly defined categories of waters, with any water not regulated by the federal government being under the oversight of state and local municipalities. This rule had replaced a 2015 rule proposed by the Obama administration which many saw as a vast overreach of federal water jurisdiction.
While speaking on the sidelines of the Farm Progress Show, Zippy Duvall, president of the American Farm Bureau Federation, says the pendulum swing between administrations on what water features are federally regulated prevents farmers from having the clarity and certainty they need on their farming operations.
“We’re trying to put together five or six-year plans for the farm, and not knowing who’s going to have jurisdiction over the waters on our place is just a nightmare for us to do long-term planning on our farms,” Duvall says.
Duvall shares three courts have previously refused to dismantle the NWPR, including last month when a federal court in South Carolina refused a similar request from plaintiff groups, which allowed the NWPR to remain in effect until a repeal rule was finalized by the Biden administration. That decision ensured regulatory certainty for producers while the Biden administration moved through the rulemaking process. The most court decision is the first time a federal court has vacated the NWPR.
The judge says regarding EPA’s and the Army Corp of Engineers’ “errors in enacting the NWPR, the likelihood that the agencies will alter the NWPR’s definition of ‘waters of the United States,’ and the possibility of serious environmental harm if the NWPR remains in place upon remand, all weigh in favor of remand with vacatur.”
While not certain, the potential exists that waters could again be governed by the 1986 regulatory definition of waters of the U.S., that many agree is overly complicated and contradictory and resulted in years of legal disputes while it was in effect. Decisions and/or actions from the federal government as a result of this new ruling are pending.
Of the 14,224 waterbodies evaluated under the 2020 rule between June 22, 2020, and June 9, 2021, Trout Unlimited found that 6,266 wetlands were determined to be no longer covered by the Clean Water Act, along with 3,096 ephemeral stream reaches. TU, which filed amicus briefs in two other court challenges to the 2020 rule, recently took other steps to assess the impacts of the rule on the ground. By examining EPA’s Clean Water Act Approved Jurisdictional Determinations database, TU determined how many streams and wetlands were no longer receiving Clean Water Act protection.
Process for Biden-era rule
Earlier this summer, the Biden administration announced their intent to repeal and replace the NWPR and return to the pre-2015 rule. This administration planned a three-phase process including listening sessions with the EPA and Army Corps of Engineers, a repeal rule for NWPR, and a new WOTUS rule. The first public comment phase began in August.
Duvall says those in the ag sector had early indications from Environmental Protection Agency Administrator Michael Regan that the administration would look to tweak NWPR, not a total rewrite, which caught everyone off guard.
“Now we are sounding the fire alarm and making sure our grassroots are involved,” Duvall says.
“It was the largest federal land grab in the history of our country,” he says of the 2015 Obama-era rule. “We just can’t allow that to happen again. We’ve got to make sure the world navigable stays in there. You’ve got to make sure it’s defined correctly.”
Duvall says how to categorize prior converted cropland and ephemeral features are two important distinctions that are now blurred if regulatory jurisdiction returns to previous rules. He says ephemeral springs that only have water after rainfall should not be federally regulated. “We all have those in the flattest of fields.
“It needs to be simple and clear because our farmers with the 2015 ruling spent hundreds of thousands of dollars on consultants and attorneys to figure out or defend what they’re doing on their land. We should be a partner, not an enemy of our government,” Duvall says.
Chris Wood, president and CEO of Trout Unlimited, welcomed the Arizona ruling. “This ruling gives the EPA a chance to get it right,” Wood says. “They should listen to the voices of Tribes, farmers, conservationists, foresters and others, and come up with a science-based plan that protects small streams while ensuring the predictability and stability that industry needs to thrive.”
While the National Cattlemen’s Beef Association says it is disappointed with the uncertainty that comes with the Arizona ruling and discouraged the repeal of NWPR, the Biden administration pursued a deliberative, transparent outreach strategy, allowing for American cattle producers to have a voice in the process.
“NCBA is disappointed in this decision and will continue advocating for regulations that protect the ability of cattle producers to invest in their land and care for their cattle,” says NCBA Chief Environmental Counsel Scott Yager.
National Farmers Union Vice President Patty Edelburg provided remarks during a recent public stakeholder meeting, and others also are informing the agencies through written comments.
Edelburg, a Wisconsin dairy farmer, asked the agencies to seek a sensible approach to environmental policy, one that protects the public and the environment, without unduly burdening farmers. In addition, NFU implored the agencies to conduct extensive outreach and engage with stakeholders, including family farmers and ranchers, throughout the rulemaking process.
“As the Army Corps of Engineers and the EPA start writing rules to achieve sound environmental goals, we also ask that you consider the needs farmers and ranchers have for those rules to be clear, easy to interpret, and economically practical. We also strongly encourage the agencies to continue to conduct outreach, to listen carefully to the concerns of farmers and ranchers, and to understand the unique challenges they face on their land,” says Edelburg.
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