Uncertainty looms as Arizona court vacates Navigable Waters Protection Rule

A federal judge’s decision in Arizona could have a devastating impact on farmers and ranchers across America and severely restrict states’ rights and ability to manage their own waters.

The ruling by the District of Arizona court vacating the Navigable Waters Protection Rule (NWPR) came down Monday, signaling an end to the definitions put in place by the Trump administration. 

Under the Trump-era rules, the EPA and Army Corps of Engineers had jurisdiction to regulate clearly defined categories of waters, with any water not regulated by the federal government being under the oversight of state and local municipalities. 

“We are disappointed to hear the court’s decision in this case,” said Laura Campbell, Michigan Farm Bureau Agriculture Ecology Department manager.

“Even though EPA had already announced they plan to rewrite the Waters of the U.S. rule that determines how many and what kind of water features can be regulated, there were many provisions of the 2020 Navigable Waters Protection Rule worth keeping.”

Campbell says Michigan Farm Bureau supports clear, consistent guidelines in the 2020 rule, such as:

• A distinct separation between state and federal jurisdiction, which is necessary to address differences in precipitation and water flow in different regions of the country.
   
• Allowing states to decide whether to regulate streams, ponds, and lakes with only ephemeral flow (flow after rain events), which are dry most of the year.
   
• Specific exclusions of ditches, groundwater, and isolated water features like wetlands when they are unconnected to navigable waterways 

These definitions gave farmers much-needed certainty on which level of government controls land that is sometimes wet, specifically land in areas that should not be considered federal waters.

Three courts have previously refused to dismantle the NWPR, including last month when a federal court in South Carolina refused a similar request from plaintiff groups. 

“With this court ruling, our biggest concern is that EPA will no longer want to listen to stakeholders talk about what worked and what should be kept from the 2020 rule as they move forward with new regulation,” Campbell said.

“Michigan Farm Bureau will continue closely monitoring the situation. We made public comments to EPA in the listening sessions and during public comment period for the rule pre-proposal, and farmers will want to weigh in on the regulation once EPA has a draft proposal in writing.”