By Doug Schmitz
PHOENIX, Ariz. – A federal judge for the U.S. District Court of Arizona recently reversed the current Navigable Waters Protection Rule signed into law last year by President Donald Trump. The judge now will consider whether to fully restore the Obama-era water rule.
Judge Rosemary Márquez, an Obama appointee, charged that there was “the possibility of serious environmental harm if the Navigable Waters Protection Rule remains in place upon remand,” which means it could be sent back to lower courts for further action.
According to the U.S. Army Corps of Engineers, navigable waters of the United States in the Clean Water Act are those waters that are subject to the ebb and flow of the tide previously or presently used, or may be susceptible for use to transport interstate or foreign commerce.
The Clean Water Act is the primary federal law in the United States governing water pollution. Its objective is to restore and maintain the chemical, physical and biological integrity of the nation’s waters.
Moreover, the Clean Water Act provides discretion for the U.S. EPA and U.S. Army Corps of Engineers to define waters of the United States in regulations. Waters of the United States establishes the scope of federal jurisdiction under the act.
In 2015, the Obama administration finalized a rule that expanded the definition of the waters of the United States, creating what U.S. Sen. Roy Blunt (R-Mo.) called “confusion and burdensome red tape for farmers and ranchers, developers and property owners.”
In January 2017, Blunt called on the EPA and U.S. Army Corps of Engineers to abandon the 2015 rule, and introduced legislation to halt it.
He said the Navigable Waters Protection Rule provided “much-needed predictability and certainty for farmers by establishing a clear and reasonable definition of what qualifies as a Water of the United States.”
However, on Aug. 4, the EPA and U.S. Army Corps of Engineers announced their intent to reverse the Navigable Waters Protection Rule. As a result, national farm groups expressed their growing concerns over sweeping changes the EPA and U.S. Army Corps of Engineers wanted to make to the Trump-era rule.
“Farmers and ranchers deserve consistency, and a rule that is fair and doesn’t require a team of attorneys to interpret,” said Zippy Duvall, American Farm Bureau Federation president.
Anne Coan, North Carolina Farm Bureau director of environmental affairs, said farmers strongly supported the Trump-era rule, “and are, frankly, angry that the EPA and the Corps plan to repeal it.”
Jim Kukowski, a Strathcona, Minn., soybean farmer, said farmers could financially suffer under the former 2015 rule. “I applied for a (Natural Resources Conservation Services) clarification of a wetland,” he said. “It was not (a wetland); it was previously drained. It was mismarked. It took over seven years for the (Natural Resources Conservation Services) to get this straightened out. The reason I was told (was) because the 2015 rule was not easy to follow.”