By Christine Souza
On behalf of California farmers and ranchers, California Farm Bureau provided feedback this month to federal agencies as they seek to revise the definition of “waters of the United States” under the Clean Water Act, which establishes the scope of federal jurisdiction.
The U.S. Environmental Protection Agency and U.S. Army Corps of Engineers, in a Federal Register notice on Aug. 4, requested pre-proposal feedback on the definition of waters of the U.S.
Farm Bureau Senior Counsel Kari Fisher said the agencies intend to issue a “foundational rule” restoring regulations defining waters of the U.S. in the Clean Water Act that were in place for decades until 2015, with updates to be consistent with relevant Supreme Court decisions.
A separate, second rulemaking process would refine this regulatory foundation and establish an updated, durable definition of WOTUS, she said. The foundational rule would repeal the Navigable Waters Protection Rule enacted during the Trump administration.
In feedback related to the WOTUS definition, California Farm Bureau President Jamie Johansson said, “To ensure that law-abiding farmers, ranchers and other landowners understand and comply with the CWA, any definition of waters of the U.S. must provide clarity and certainty.” He added, “It is necessary that family farmers and ranchers have a rule that draws clear lines of jurisdiction that they can understand without hiring costly consultants and lawyers.”
In related news, the U.S. District Court for the District of Arizona on Aug. 30 issued an order vacating and remanding the Navigable Waters Project Rule in the case of Pascua Yaqui Tribe v. U.S. EPA. As a result of the order, the EPA said, “The agencies have halted implementation of the Navigable Waters Protection Rule.”
“With the U.S. District Court for the District of Arizona’s Aug. 30 order, the 2020 Navigable Waters Protection Rule has been vacated and no longer applies,” Fisher said. “Instead, the agencies will apply the 1986 regulations and various U.S. Supreme Court guidance when determining if a water is a water of the United States and if a permit is needed.”
American Farm Bureau Federation President Zippy Duvall expressed disappointment in the decision. “Farmers finally had environmentally responsible regulations that brought clarity to clean water efforts,” he said. “This ruling casts uncertainty over farmers and ranchers across the country and threatens the progress they’ve made.”
