As a rancher and farmer, I take the stewardship of my land and water resources very seriously – as do nearly all those growing food and fiber in this country. My children are the sixth generation in our family to operate and live on the Carlink Ranch in southeast Arizona. We strive to manage our resources in such a way that the next six generations will have the same opportunities that we have had.
The Clean Water Act (CWA) is likely considered one of the most important pieces of legislation to have passed in the last century – and for good reason. However, clarification of the rules implementing the act has been necessary given that over the last several decades the Corp of Engineers (Corp) has steadily expanded the footprint of regulation in interpreting what qualifies as a Waters of the U.S. (WOTUS). The 2015 Rule was overwhelmingly opposed by those in agriculture because it further expanded this footprint and created a complex matrix of qualifiers while weakening the farming and ranching exemptions. This rule was enjoined nationwide because it was clear that the rule departed from precedent previously set by Supreme Court rulings and it essentially defined the term navigable out of the Act in its attempt to regulate all waters.
Contrast that with the Navigable Waters Protection Rule which brought clarity to what qualified as WOTUS through bright-line rules while maintaining much-needed farming and ranching exemptions. This rule was recently vacated by the courts – not because it was overstepping the intent of the CWA, but because of extreme conjecture as to environmental consequences. Not only was the basis of this argument conjecture, but it largely existed in the space of jurisdiction of the state – which oversees water quality in waters outside of those traditionally considered navigable.
If the Environmental Protection Agency (EPA) and the Corp are committed to expending more time and resources in drafting two new rules, then the rules should include the following if the sustainability of family farms and ranches are of any consideration.
- Preserve the rights of the states to be responsible for the land and water use and development within that state. The Supreme Court has already reinforced this limit on federal powers for good reason. State and local officials have a long history of working with landowners to improve water quality. Working under the CWA’s cooperative federalism structure, state programs have been and can continue to be very effective in protecting water resources. The states are much more familiar with land and water resources outside the scope of what is considered navigable, and it is much more efficient both economically and process-wise for farmers and ranchers to work with local experts.
- It is unnecessary and outside the intent of the Act to define non-navigable, intrastate, mostly dry features that are far removed from navigable waters as “Waters of the U.S.” to try and achieve the Act’s objective. In doing so, the 2015 rule created uncertainty and confusion for farmers and ranchers in making normal farm and ranch management decisions. The defining of “significant nexus” in the 2015 rule created a subjective litmus test and opened the door to asserting jurisdiction based on desktop analyses of historical aerial photos or other remote imagery. This is not a fair and unbiased approach to regulating family farms and ranches. Any new rule must include readily measurable, objective characteristics to qualify a significant nexus to traditionally navigable water. The presence of a high-water mark is not a legitimate measure of a nexus, as it provides no assurance as to volume and flow. When it is difficult to ascertain whether a land feature is jurisdictional, the farmer and rancher incur unnecessary legal and permitting costs while suffering productivity losses.
- Farming and ranching exemptions must be clear and consistent. Prior Converted Cropland (PCC) should be expressly defined, as in the NWPR – as “an area is no longer considered prior converted cropland for purposes of the CWA when the area is abandoned and has reverted to wetlands.” This definition reinforces how the PCC exclusion is to be applied and puts an end to any improper attempts to narrow the PCC exclusion through the “change in use” policy that has already been rejected in the courts. The NWPR also clarified how to assess abandonment so that farmers and ranchers could continue to make full use of their land without losing the PCC status. Clear and consistent exclusions provide regulatory certainty for farmers and ranchers given the potential for misapplication by agency staff or citizen plaintiffs filing suit under the CWA citizen suit provision.
- Groundwater should continue to be excluded from the text of the rule.
- Farm ditches, canals, ponds, and similar features should continue to be excluded from the definition of WOTUS provided that construction of such features in a WOTUS does not eliminate CWA jurisdiction.
Farmers and ranchers are experiencing record high input costs in fertilizers, energy, fuel and labor. While market sales for many commodity products remain at or below the prices received in the last decade. This is why regulatory compliance costs are of such concern to producers. It does not take much to tip the scale into negative territory given that we are for the most part – price takers. The stakes are very high for non-compliance of the CWA and farmers and ranchers must know with confidence before engaging in agricultural activities what features on the farm and ranch are and are not WOTUS. Not only must the rule be clear and consistently applied, but it must also be reasonable and within the intent of the CWA.
Editor’s Note: This was Arizona Farm Bureau President Stefanie Smallhouse’s opening statement during a January 6th, 2022, roundtable hosted by the Small Business Administration (SBA) Office of Advocacy regarding WOTUS impacts.