U.S. water rulings keep landowners adrift
Laws that are meant to protect the U.S. navigable waters have taken a turn. For some, it’s a turn for the worse. For others, a turn for the better.
On Monday, the U.S. District Court in Arizona ruled that former President Donald Trump’s Navigable Waters Protection Rule (NWPR) must be vacated because the rule contains serious errors and has the potential to cause significant harm to the nation’s waters if left in place while the Biden administration works on revisions to the rule.
This week’s ruling followed a failed attempt by plaintiffs in a South Carolina court last week, trying to get a similar ruling against the NWPR.
And, in January, President Biden issued an executive order that directed the agencies to review Trump’s NWPR. In June, based upon that review, agencies announced their intent to revise the rule.
While the NWPR decision impacts many stakeholders, the farmers and ranchers that own land containing wetlands are deeply impacted.
For example, if landowners sit on property that contains wetlands regulated by federal authorities, they may lose their right to build a home or develop that land.
Zippy Duvall, American Farm Bureau Federation President (AFBF), says this week’s ruling by the District of Arizona court is disappointing.
“AFBF is extremely disappointed in the ruling to vacate the Navigable Waters Protection Rule (NWPR). Farmers finally had environmentally responsible regulations that brought clarity to clean water efforts. This ruling casts uncertainty over farmers and ranchers across the country and threatens the progress they’ve made to responsibly manage water and natural resources,” Duvall stated in a press release.
“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. Unfortunately, this Arizona court simply accepted the plaintiffs’ assertions as true and did something that no other court has done in vacating the NWPR,” Duvall stated.
The AFBF is reviewing the ruling to determine its next course of action.
“Farmers and ranchers deserve consistency and a rule that is fair and doesn’t require a team of attorneys to interpret,” Duvall says.
Earthjustice, a nonprofit law organization representing the plaintiffs in the Arizona case, Arizona-based Pascua Yaqui Tribe, says that the U.S. will return to water protections that were put in place in 1986.
“This outcome ensures Clean Water Act protections are in effect while the Biden administration works to develop a new rule. The “Dirty Water Rule” was particularly damaging for waters throughout the West, Southwest, and Great Lakes, according to an Earthjustice press release.
“The court recognized that the serious legal and scientific errors of the Dirty Water Rule were causing irreparable damage to our nation’s waters and would continue to do so unless that Rule was vacated,” said Janette Brimmer, Earthjustice attorney in a press release. “This sensible ruling allows the Clean Water Act to continue to protect all of our waters while the Biden administration develops a replacement rule.”
The 1972 Clean Water Act is designed to protect the quality of life for humans and aquatic animals.
What’s not clear is what waters are to be included. That job has been left to the Army Corps of Engineers and the Environmental Protection Agency (EPA).
The battle to control the navigable waters made waves in 2015 when then President Obama’s administration revised the “waters of the United States” rules.
President Obama’s revision to the CWA was labeled the Clean Water Rule.
Members of the farming industry opposed changes, while environmental groups backed the revisions by Obama.
Kristine Tidgren, Center for Agricultural Law and Taxation (CALT), says that these court fights over “waters of the U.S.” have gone on too long.
The Clean Water Rule was thought by states, agricultural, and industry members to be overbroad.
“Specifically, the way that 2015 rule defined tributaries and adjacent waters did not set clear limits. It created a new definition called neighboring waters. These new waters could be read to include wetlands that had not been regulated before. And it would include jurisdiction over ephemeral bodies that don’t have water in them most of the time. A big concern was that it expanded the definition of regulated wetlands,” Tidgren says.
In addition, the 2015 Rule was opposed by over half of the U.S. states, as they demanded to have jurisdiction over their own bodies of water and not the federal government.
For the record, here is how the EPA defines WOTUS: The “Waters of the United States” means the territorial seas, and waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including waters which are subject to the ebb and flow of the tide, according to the Environmental Protection Agency (EPA). This includes tributaries, lakes, and ponds, and impoundments of jurisdictional waters and adjacent wetlands.
The following are not “waters of the United States”: Artificially irrigated areas, including fields flooded for agricultural production, that would revert to upland should application of irrigation water to that area cease;
artificial lakes and ponds, including water storage reservoirs and farm, irrigation, stock watering, and log cleaning ponds, constructed or excavated in upland or in non-jurisdictional waters, so long as those artificial lakes and ponds are not impoundments of jurisdictional waters, according to EPA documents.
In 2017, then President Trump took action to repeal and replace Obama’s 2015 Rule.
Trump’s executive order stated, “It is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution,” according to EPA documents.
The executive order directed the EPA and the Army to review the 2015 rule for consistency with the policy outlined in Section 1 of the order and to issue a proposed rule rescinding or revising the 2015 rule as appropriate and consistent with law. The executive order also directed the agencies to ‘‘consider interpreting the term navigable waters,” according to EPA.
More recently, on April 21, 2020, EPA and the Department of the Army (Army) published the NWPR in the Federal Register to finalize a revised definition of “waters of the United States” under the Clean Water Act. The rule became effective on June 22, 2020, and is currently being implemented by EPA and the Army across the country, according to EPA documents.
Until President Biden can create a new rule, the EPA and Army will use the pre-2015 rules, informed by the significant nexus test to determine if waters can be regulated under the Clean Water Act.
The significant nexus test requires a determination of whether wetlands or waters bear a significant nexus to traditional navigable waters. If so, they are jurisdictional. The test is difficult because it requires a case-by-case analysis.
Tidgren explains that the Clean Water Act has seen non-stop litigation since 2015, regarding the definition of the “waters of the U.S.”
“This has created much uncertainty for agriculture and industry. A consistent rule, left in place, would be helpful. The constant shifting makes it really difficult to know how to use your land,” Tidgren says.