Michigan Farm Bureau and AFBF are once again stepping up to the plate to defend state’s rights to regulate their own water.
MFB Senior Conservation and Regulatory Relations Specialist Laura Campbell provided comment to EPA, sharing concerns over several issues found in the agency’s proposed rule rewriting the definitions of the Waters of the United States (WOTUS).
Although Michigan is one of three states with delegated authority to implement key portions of the Clean Water Act, the possibility of EPA overreaching into the ability for states and private landowners to decide what waters are regulated raises many red flags.
“Michigan farmers share the concerns across the country that EPA and the U.S. Army Corp of Engineers will in many circumstances be able to override Michigan’s jurisdictional and permitting decisions using the overly broad, vague and uncertain definitions,” Campbell wrote to the EPA.
“It all adds up to the possibility of federal authorities implementing provisions to create an uncertain, moving target which farmers will never have a clear idea of how to comply.”
EPA’s 2015 Clean Water Rule was rejected by multiple courts because of its overreach and heavy burdens on farmers and landowners.
Despite that, Michigan Attorney General Dana Nessel recently signed onto a letter along with AGs from more than a dozen other states urging the Biden administration to go back to the definition of WOTUS used in the 1980’s.
Much of the current proposed rule — which defines what can be regulated as WOTUS — returns those regulations to their pre-2015 status.
“However, EPA and the U.S. Army Corps of Engineers have also added several terms and definitions that could create real headaches for farmers and landowners,” Campbell said.
“The key to this proposed rule is how and where to regulate non-navigable waters (tributaries, ditches, wetlands, ponds, etc.) that are adjacent to or flow into navigable waters.”
Crucially, the agencies are removing the requirement to be regulated — the degradation or destruction of these non-navigable waters had to affect foreign or interstate commerce.
The rule replaces that requirement with putting waters through one of two tests: whether a water is “relatively permanent,” and whether it has “significant nexus” to a traditionally navigable water. If it is, then it is regulated regardless of its impact on commerce.
AFBF submitted comments to EPA that echo Campbell’s concerns, especially when it comes to the many benefits of the Navigable Waters Protection rule — which replaced the 2015 Clean Water Rule that the U.S. Department of Justice filed a motion to repeal — including the importance of exclusions and exemptions, particularly for prior-converted cropland.
“We highlighted the problems with this proposed rule which range from the incredibly vague terms that they're using to establish jurisdiction, to the claim that they made about this rule having zero impact on the regulated community,” said Courtney Briggs, AFBF senior director of congressional relations.
While the comments from MFB and AFBF relate to the initial rule presented by EPA, the fight is far from over.
“EPA and U.S. Army Corps of Engineers’ officials have stated this rule is just the beginning, and that they will go on to propose another, more extensive rule change on waters of the United States once this one is finalized,” Campbell said.
“These uncertain and open-ended terms and definitions could then become a big problem for Michigan if a subsequent rule uses them for more extensive rule changes.”