RFD-TV Interview: Whoa WOTUS Gets Complicated Again
Monthly, RFD-TV interviews Arizona Farm Bureau President Stefanie Smallhouse. This opportunity gives President Smallhouse a monthly forum for telling Arizona agriculture’s story and at times agriculture’s story on the western half of our country.
However, this latest RFD-TV interview gave her an opportunity to talk about a court ruling that will impact all American agriculture negatively if we don’t get it right.
What follows is the recent interview Smallhouse had with RFD-TV
RFD-TV: The U.S. District Court for the District of Arizona recently made a ruling vacating the Navigable Waters Protection Rule created during the Trump Administration. This has created some serious concerns in the agricultural community. Can you first give us a little background on the rulemaking for the Waters of the U.S?
Smallhouse: The Clean Water Act (CWA) requires that anyone discharging material like dredge/fill or wastewater into a navigable waterway from a specific point source obtain a permit from the Army Corp of Engineers. Inconsistent permitting enforcement of the Clean Water Act across the country over the last several decades made it evident that a rulemaking was needed to clear up confusion for industries like construction, mining and agriculture. Both the Obama Administration and the Trump Administration created rules to define which waterways are Waters of the U.S., and therefore, set the boundaries of the federal government's authority to consistently regulate navigable waterways.
RFD-TV: We know that the Obama 2015 WOTUS Rule was repealed by the Trump Administration because of widespread opposition and then the new Navigable Waters Protection Rule was finalized by President Trump in 2020 - what were the concerns with the 2015 rule and what are the differences between the two rules?
Smallhouse: The 2015 rule, Obama’s Rule, had been put on hold in about half of the states in the country because federal courts had ruled that it overstepped the scope and intent of the Clean Water Act and that the Obama Administration violated the Administrative Procedures Act - they didn't follow the rulemaking process correctly. Many industries and local governments were involved in those lawsuits because of the horrible implications the rule would have had. It was a mess! It eliminated the line between where water ended, and land began. It regulated all land where water might collect at any time during the year, regardless of navigability or commerce and it was extremely confusing.
There has been much hyperbole out there, which led to the recent Arizona ruling vacating the Trump rule, stating the 2020 Navigable Waters Protection Rule left WOTUS unprotected and there would be serious environmental consequences if not litigated or repealed. When in fact, both rules protect the territorial seas, navigable rivers and lakes, tributaries, ditches, lakes, ponds and wetlands. The only differences between the two rules are that the 2015 rule was very broad in scope and required a permit for any waterway with a bed, bank and highwater mark regardless of whether it only collected water during high rain events, all ditches regardless of whether they are used for commerce, all lakes and ponds regardless of a surface water connection and pretty much all wetlands.
The 2020 Rule covered all these waterways, but in a narrower fashion so as not to include dry washes, ditches not being used for commerce, lakes and ponds with no surface water connection, or wetlands separated from regulated waters with an impermeable barrier. The 2020 rule was clear, concise; within the intent of the Clean Water Act to protect navigable waterways.
RFD-TV: What about the exemptions for "normal" farming and ranching activities? Have those survived all these rewrites?
Smallhouse: Folks often discount the concerns of farmers and ranchers during all of this rulemaking by referring to those exemptions. Our concerns are well-founded because the exemptions are quite narrow and still subject to agency interpretation. Farmers and ranchers are deeply invested and concerned about water quality because we need clean water for our crops, livestock and our families, but in the past those exemptions have been denied when changing from one crop to another, changing from pasture to crop production and after land has been fallowed for a period due to drought or other limitations.
In Arizona, it's imperative that we can adjust our cropping patterns and field rotations based upon what is going on with the climate. Any rulemaking should not create disincentives for farmers and ranchers to enroll or implement conservation practices.
RFD-TV: The states have been quite active in the litigation of both rules - what is their role in protecting water resources?
Smallhouse: Great question! Just because a waterway is not protected within the jurisdiction of the federal government, does not mean it does not receive protection within the state. States know their water resources more intimately than the federal government, and state oversight recognizes regional differences. In Arizona, we passed statutory language this year tightening up our state waters’ protection rule to ensure that all tributaries with reasonable connectivity are protected, implemented a coherent process to add or remove protected waters based upon local input and allow for straightforward agricultural exemptions so farmers and ranchers can continue to grow food and fiber without the consult of an attorney at the change of each season.