The Many Flaws in the EPA’s 2015 Waters of the United States Rule

The Many Flaws in the EPA’s 2015 Waters of the United States Rule
Farm and Ranch Country's Ditch the Rule campaign from last year.

While the comment period for repealing and replacing the 2015 Waters of the United States rule has closed, Arizona Farm Bureau thought it would share with you our comments regarding the rule:

On behalf of more than 2,000 farmer and rancher members across the State, the Arizona Farm Bureau is pleased to comment in support of repealing and replacing the 2015 Waters of the United States (WOTUS) rule (“the Rule”).

As a desert state with a $17.1 billion agricultural industry, Arizona is uniquely equipped to recognize the value of reliable water resources. The availability of safe, clean water is of utmost importance to our agricultural producers: without it, we could not raise animals, grow crops, or sustain our vibrant and quickly developing communities. When it comes to Arizona agriculture, without water, nothing else matters.

Arizona has long been critical of the 2015 Rule’s numerous flaws. First, the Rule radically expanded the scope of the Clean Water Act (CWA) and federal regulatory power. Although the Clean Water Act and numerous U.S. Supreme Court Cases limit federal jurisdiction to “navigable” waters, the Rule effectively eliminated the navigability requirement. For example, the Rule defined “tributary” and “adjacent” in ways that were broad enough include irrigation ditches or dry desert washes as WOTUS. In the arid southwest, these types of water features often flow for only days or even hours during the year, and have very little connectivity to actual navigable waters. Nevertheless, the Rule would include these features as regulated Waters of the United States, regardless of the amount, frequency, or duration of actual water flow within them.

Second, the Rule’s scope was so broad enough to have interfered with normal farming and ranching operations. Because it expanded the jurisdictional reach of federal control to include even non-navigable waterways, it would have required a significantly higher number farmers and ranchers to obtain permits before plowing, planting, discing, fertilizing, building fence, or applying crop protection materials to the soil. The Rule’s oversight requirements essentially gave the federal government and environmental litigants veto power over the day-to-day decisions a farmer or rancher must make to run a successful operation. The federal government is neither equipped nor intended to have that level of oversight over the work necessary to grow our nation’s food and fiber.

Finally, the 2015 Rule was created without consulting local governments, agencies, or other stakeholders. This failure to take into account local concerns and regional differences contributed to a severely flawed economic analysis of the rule, in which the impact on small businesses such as farms and ranches was ignored. The burdensome permitting fees, coupled with the threat of fines for failure to comply with the Rule’s vague and confusing provisions, are far beyond what family farms and ranches are able to pay.

When the Rule was proposed, farm and ranch groups from across the country spoke out in opposition, raising the same concerns we highlight today. Recognizing the unlawful nature of the Rule, 31 States and 53 non-state parties, including environmental groups, state and local governments, farmers, landowners, developers, recreation groups, and businesses, challenged the Rule in courts across the nation. Ultimately, the Rule was never implemented, sparing our nation’s farmers and ranchers from having to follow an unclear, unfair, and unwise rule. EPA’s proposal to repeal the Rule is the only way to avoid disastrous consequences of extensive litigation and unlawful government interference into private activities.

Implementing the 2015 WOTUS rule will severely impede our farmers’ and ranchers’ productivity and ability to operate efficiently. We strongly opposed the Rule then, and now we applaud EPA’s proposal to repeal the Rule altogether. We urge EPA to recodify the previous statutory WOTUS definition, and “ditch the rule” as it was proposed in 2015.

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