Sunday, October 17, 2021

Muddy Waters

The National Cotton Council continues to press for clear, concise water regulations that do not infringe on private property rights or landowners’ abilities to farm their land.

gary adams, ncc
Gary Adams

■ What is the current rulemaking situation?

The Environmental Protection Agency and the U.S. Army Corps of Engineers halted implementation of the Trump administration’s Navigable Waters Protection Rule and are interpreting “Waters of the United States” consistent with the pre-2015 regulatory regime until further notice. A rule rewrite could lead to federal oversight of many small bodies of water on private lands.

■ How has the NCC weighed in?

The NCC recently provided comments to the agencies on their proposed federal waters law rewrite despite being given just a 30-day comment period — one for which we and other stakeholders sought an extension.

The comments also were based on an Aug. 30 decision to vacate the 2020 NWPR issued by a U.S. District Court judge for the District of Arizona in the case of Pascua Yaqui Tribe versus EPA.

The NCC’s comments outlined the confusion that enforcement of water law based on the pre-2015 rule could create by leading to misapplication of federal statutes and expanding federal water law by forcing landowner decisions regarding farming practices on private property.

We conveyed support for the NWPR, which recognized the rights of states to provide the necessary protection of their own waters. The NCC also signed onto similar comments opposing a NWPR rewrite that were filed by the American Farm Bureau Federation and the Water Advocacy Coalition — a broad cross-section of small business, farmers, ranchers and job creators — of which the NCC is a member.

Comments submitted by American Cotton Producers Chairman Mark McKean noted the inconsistencies a new regulation expanding federal water authority would have on the partnership U.S. Department of Agriculture is making with producers to address climate change and expand on-farm conservation practices.

NCC art
A “Waters of the United States” rule rewrite could lead to federal oversight of many small bodies of water on private lands.

He stated, “The agencies are creating a scenario where growers could need approval or even federal permits to conduct some of the most basic conservation practices such as planting a cover crop through a grassy depression that may contain water at times.

A gross expansion of federal water authority with a regulation like the Obama Administration’s WOTUS rule would be counterintuitive to achieving the administration’s carbon sequestration goals.” He also urged that any new water regulation adhere to Congressional intent, statute and judicial precedent.

■ What’s next?

When this column was submitted in mid-September, the agencies had begun interpreting the Arizona federal court ruling. In addition to halting implementation of the NWPR and interpreting “waters of the United States” consistent with the pre-2015 regulatory regime until further notice, the agencies decided the Arizona court’s vacatur applied nationwide.

One significant question that remains is — because the agencies planned to repeal the NWPR, revert to the pre-2015 rules and then replace the NWPR, does the judge’s ruling, in effect, deny the regulated community public comment and/or litigation opportunities by removing a step from the planned and published process?

This, of course, may be subject to further decisions from the judge, or based on potential appeals. Needing clarification, the NCC requested EPA hold stakeholder calls regarding the ruling’s impact and stands ready to provide additional NWPR support comments if the agencies grant an extension.

Gary Adams is president/CEO of the National Cotton Council of America. He and other NCC leaders contribute columns on this Cotton Farming page.

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