Uncertainty looms as Arizona court vacates Navigable Waters Protection Rule

Wisconsin State Farmer
A federal court judge in Arizona struck down the Trump Administration's Navigable Waters Protection Rule - even as the Biden team had begun the process of reworking the regulation - saying the rule was "too flawed to keep in place".

A federal judge’s decision in Arizona could have a devastating impact on farmers and ranchers across America and severely restrict states’ rights and ability to manage their own waters.

The ruling by the District of Arizona court vacating the Navigable Waters Protection Rule (NWPR) came down Monday,  even as the Biden team had begun the process of reworking the regulation

Under the Trump-era rules, the EPA 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.

“We are disappointed to hear the court’s decision in this case,” said Laura Campbell, Michigan Farm Bureau Agriculture Ecology Department manager.

“Even though EPA had already announced they plan to rewrite the Waters of the U.S. rule that determines how many and what kind of water features can be regulated, there were many provisions of the 2020 Navigable Waters Protection Rule worth keeping.”

The National Cattlemen's Beef Association condemned the action, saying the the Navigable Waters Protection Rule limited federal overreach and provided regulatory certainty to the nation’s cattle producers.

“The NWPR was a solution to the far overreaching 2015 WOTUS rule but yesterday’s court decision adds further confusion to an issue that has been complicated by decades of activist-driven litigation," said NCBA Chief Environmental Counsel Scott Yager.

While NCBA was discouraged by the repeal of NWPR, Yager said the Biden Administration pursued a deliberative, transparent outreach strategy, allowing for American cattle producers to have a voice in the process.

American Farm Bureau Federation President Zippy Duvall said the Arizona court ruling to vacate NWPR threatens progress made in clean water efforts.

"Farmers finally had environmentally responsible regulations that brought clarity to clean water efforts. This ruling casts uncertainty over farmers and ranchers across the country and threatens the progress they’ve made to responsibly manage water and natural resources," Duvall said. 

Duvall noted that three courts had previously refused to dismantle the NWPR, including last month when a federal court in South Carolina refused a similar request from plaintiff groups.

"Unfortunately, this Arizona court simply accepted the plaintiffs’ assertions as true and did something that no other court has done in vacating the NWPR," Duvall said. “We are reviewing the ruling to determine our next course of action. Farmers and ranchers deserve consistency and a rule that is fair and doesn’t require a team of attorneys to interpret.”

Campbell says the Farm Bureau supports clear, consistent guidelines in the 2020 rule, such as:

  • A distinct separation between state and federal jurisdiction, which is necessary to address differences in precipitation and water flow in different regions of the country.
  • Allowing states to decide whether to regulate streams, ponds, and lakes with only ephemeral flow (flow after rain events), which are dry most of the year.
  • Specific exclusions of ditches, groundwater, and isolated water features like wetlands when they are unconnected to navigable waterways

"These definitions gave farmers much-needed certainty on which level of government controls land that is sometimes wet, specifically land in areas that should not be considered federal waters," Campbell said. “With this court ruling, our biggest concern is that EPA will no longer want to listen to stakeholders talk about what worked and what should be kept from the 2020 rule as they move forward with new regulation.”

EPA and the Army Corps of Engineers had successfully lobbied courts in other parts of the country to allow the Biden administration to come up with a new definition of waters of the U.S., or WOTUS, without immediately scrapping the Trump rule.

However, Judge Rosemary Márquez of the Arizona district court said the Trump rule, which gutted the Obama administration’s 2015 Clean Water Rule, was too flawed to keep in place.

The EPA, now headed by Biden appointee Michael Regan, said it is reviewing the decision and declined to comment. In June, Regan said the agency planned to issue a new rule that protects water quality while not overly burdening small farmers.

The water rule — sometimes called “waters of the United States” or WOTUS — has long been a point of contention. In 2015, the Obama administration expanded federal protection to nearly 60% of the nation’s waterways. Because the Obama rule also faced several legal challenges, Monday's decision puts back in place a 1986 standard — which is broader in scope than the Trump rule but narrower than Obama’s — until new regulations are issued.

The Michigan Farm Bureau and Associated Press also contributed to this story