Latest EPA Report Encroaches on States Rights

By Ana Kennedy Otto, Arizona Farm Bureau Government Relations Manager: Farmers and ranchers from across Arizona recognize water is a precious resource. Naturally, availability of reliable, clean water is of great importance to our farmers and ranchers as it’s essential for raising animals, growing crops, as well as sustaining ourselves and our communities. The direct, induced and ripple effects of Arizona agriculture provide an overall impact of $17.1 billion to the state’s economy. In a recent technical report, two federal agencies are asking states under the Clean Water Act (CWA) to quantify flow targets, instead of traditional water quality standards. Believing water quantity is the purview of the states, this recent requirement raises concern.

As a result, Arizona Farm Bureau submitted comments to the Environmental Protection Agency and the United States Geological Survey's (Agencies) draft technical report “Protecting Aquatic Life from Effects of Hydrological Alteration.”

Noting the overall objective of the CWA is to “restore and maintain the chemical, physical and biological integrity of the Nation’s water” (Section 101(a)), the Agencies have created a technical report to help those responsible for hydrological regimes to quantify flow targets for the preservation of aquatic life and habitat. The report creates what the EPA describe as a “flexible, nonprescriptive” framework for states and tribes to incorporate flow and water quantity criteria into their water quality standards (WQS). However, the CWA has generally dealt with water quality, not a water quantity. The regulation of water quantity has been the purview of the states. Congress made clear its intent to preserve, and protect the primary responsibilities and rights of States to plan the development and use of land and water resources and the authority of each State to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired. See 33 U.S.C. §§ 1251 (b), (g).

Also concerning is the inclusion of an appendix titled “Legal Background and Relevant Case Law.” If the report is truly a non-binding resource for states and tribes, it should not include policy or legal considerations. Including this information gives the impression that the report is a directive and should be removed.

“Factoring water quantity into WQS would be problematic in Arizona,” said Arizona Farm Bureau President Kevin Rogers. “The state has a bifurcated water law system with surface water and groundwater regulated by separate statues and rules. Incorporating flow or quantity into WQS not only blurs the lines between quality and quantity, but makes flow and quantity subject to EPA oversight. Not only is this federal overreach, but it becomes a bureaucratic and logistic nightmare for individuals and businesses seeking groundwater (well) or surface water permits, as they would potentially have to deal with not only the Arizona Department of Water for such permits, but with the Arizona Department of Environmental Quality who oversee WQS.”

Because states have the authority to allocate water and understand the nuances of their land and water resources, they are better suited to protecting aquatic life from the adverse effects of hydrological alteration. In fact, Arizona law already provides an approach to protecting aquatic life by making “instream” flow permits available to keep water in a stream to support fish and other wildlife habitat. Thus, the report should emphasize there is no one-size-fits-all approach and should dismiss any notion that a consistent approach (such as the adoption of numeric flow targets) by states is required.

“As a member of the American Farm Bureau Federation, we support the comments they are submitting to this docket,” added Rogers. “We urge the Agencies to consider our collective concerns and revise the technical report by removing all policy and legal discussions and including language that makes clear the report is not a directive, or a one-size-fits-all approach. Furthermore, before the report is finalized the Agencies should engage other key stakeholders such as state agencies and the Corps.”

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