Farmers’ voices heard on WOTUS rewrite
Roundtable discussion features insight on the agricultural impact of the update to the Clean Water Act.
In the latest pendulum swing of water regulations, the Biden administration is undergoing actions to repeal and replace the 2020 Navigable Waters Protection Rule finalized under the Trump administration. Farmers’ voices on the impact of any new rule were elevated in a roundtable discussion on Jan. 6 with key government officials in an event hosted by the Small Business Administration Office of Advocacy.
The latest regulation, proposed in November by the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers, would repeal the 2020 NWPR, re-establish the definition of WOTUS to what was in place from 1986 to 2015, and broaden the federal government's authority under the Clean Water Act.
Sylvia Quast, senior advisor to the assistant administrator of water quality at EPA, says the decision to return to the 1980s interpretation of what is defined as “waters of the U.S.” while also including considerations from 2001 and 2006 Supreme Court rulings was done to “avoid the ping ponging” for those who are dealing with the application of rules, and also for the regulators who are implementing the rules.
Quast says EPA and the Army Corps of Engineers proposed to return to the rules prior to that in 2015 when the Obama administration attempted to clarify what constitutes a water that was later challenged in the courts. Stefanie Smallhouse, Arizona Farm Bureau President, shares that the 2015 rule was overwhelmingly opposed by those in the agricultural community because it further expanded the Corps’ federal footprint of jurisdiction and created a “complex matrix of qualifiers while weakening the farming and ranching exemptions.”
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Smallhouse, as well as other agricultural stakeholders who shared their thoughts, identified the confusion returns with understanding what represents a “significant nexus” and is a concern that needs to be addressed in the current rulemaking efforts ongoing now. The Supreme Court dissertations included the significant nexus as a qualifier to what should be included in federal jurisdiction, but the Obama administration’s interpretation greatly expanded its definition of water connections to regulated bodies of water.
The case-by-case test allows the agencies to regulate ditches, ephemeral features, or low spots on farmland and pastureland that “have a more than speculative or insubstantial” impact to a navigable water. The test also allows the agencies to aggregate waters that are “similar situated,” enabling them to expand their reach, capture entire watersheds and make moving dirt, plowing or building fences subject to regulations.