LINCOLN, Neb. (DTN) -- The director of the Arizona Department of Environmental Quality told federal officials on Thursday that the so-called "significant nexus" test used to determine whether waters are federally jurisdictional needs to be scrapped.
In its place, Misael Cabrera told EPA and U.S. Army Corps of Engineers officials during a waters of the U.S. roundtable, needs to be a science-based alternative that is easy to replicate when making Clean Water Act determinations.
EPA and the Corps repealed the Trump Navigable Water Protection rule and returned to pre-2015 definitions, including the significant nexus test.
Significant nexus is establishing a scientific connection between smaller water bodies such as tributaries and larger, more traditional navigable waters such as rivers. This then makes the smaller water bodies jurisdictional. Significant nexus determinations in the 2015 rule were a hot-button issue for farmers, ranchers and other landowners who fear the expansion of federal jurisdiction onto private lands.
The federal agencies indicated a new rewrite of the rule, possibly expected to be released yet this year, is expected to feature the significant nexus test.
"The scope and applicability of the law can shift dramatically after every presidential election," Cabrera said during the third of 10 WOTUS roundtables to be hosted by the agencies.
"To make matters worse, the guidance is based on interpretations of flow regime that are highly subject to disagreement, even among federal agencies."
When it comes to water resources in the Southwest, Cabrera said, there is rarely disagreement about protecting major rivers and their tributaries.
"The disagreement occurs when considering intermittent and especially the ephemeral tributaries," he said.
The Supreme Court has established two different tests for tributaries, including significant nexus and "relatively permanent" in the arid Southwest. Because water is "relatively scarce," he said, the significant nexus test always takes precedence when making CWA determinations.
Cabrera said federal regulators typically apply the "most stringent" controls where water resources are most threatened, even if the threat is ambiguous or unclear.
"We can easily imagine regional scenarios where Arizona and New Mexico are regulated more stringently than the rest of the country," he said.
"And that is why those who would seek regulatory relief and clarity through a regional approach to WOTUS will be disappointed until we have a clear, repeatable and science-based approach."
PROPOSED APPROACH
Cabrera suggested a new approach to making CWA determinations. That would include using flow modeling and pollutant transport modeling to quantify what significant nexus is. It would start by acknowledging major rivers and washes as WOTUS, as well as the perennial tributaries to waters.
"For intermittent and ephemeral tributaries, there is a two-step approach," Cabrera said.
"In step one, we asked if the tributary is hydraulically connected to the downstream waters. There are modeling tools that can already model this for us. In step two, we ask if the transport of pollutants can occur under normal or 100-year precipitation events using" various models.
"Those same models can also help us estimate the probability of impairing the downstream WOTUS designated use. In other words, if a tributary that is intermittent or ephemeral has an impact on a downstream WOTUS, then it should be regulated as a WOTUS. This approach abandons the flow regime approach, which has not helped us arrive at a durable regulation. It replaces it with jurisdictional determinations based on repeatable, objective science through modeling and designated use standards that already exist."
Stephanie Smallhouse, a rancher and president of the Arizona Farm Bureau Federation, said the CWA should preserve states' rights to be responsible for land and water use.
That's because states like Arizona, she said, understand their hydrology and know how "best to protect waters" that are not navigable.
During the roundtable, Smallhouse shared photos of a dry tract of land on her Arizona ranch that could be considered as WOTUS.
"It is unnecessary and outside the intent of the act to define non-navigable, intrastate, mostly dry features that are far removed from navigable waters as waters of the U.S.," she said.
"When it is difficult to ascertain whether land features are jurisdictional, the farmer/rancher incurs unnecessary legal and permitting costs while suffering productivity loss. So, these pictures depict two different waterways, which are currently included on the Arizona surface waters protection list, but not considered navigable. So, to say that in the Southwest there are waterways, drainage, dry washes currently not protected is simply untrue."
When EPA and the Corps of Engineers announced their intentions to scrap the Trump water rule, EPA Administrator Michael Regan was quoted in news releases as saying many waterways, including some in the Southwest, were left unprotected by that rule.
WOTUS FARMING EXEMPTIONS
Smallhouse said CWA farming and ranching exemptions need to remain intact in a new rule. She raised a concern that WOTUS definitions could become more stringent to the point of discouraging farmers and ranchers from ongoing conservation work.
"Farming and ranching exemptions must be clear and consistent," she said.
"In the most recent rule proposal, many of the exemptions have been diluted or not included such as prior-converted cropland. Prior-converted cropland should be expressly defined as it was in the Navigable Waters Protection rule. It should be defined as an area that is no longer considered prior-converted cropland for purposes of the Clean Water Act when the area's abandoned and has reverted to wetlands."
Carlyle Currier, a western Colorado rancher and a member of the Colorado Ag Water Alliance, said farmers and ranchers "very much need" regulatory certainty in a new WOTUS rule.
"We need the ability to rely on a consistent set of rules and regulations that that we can follow if we're going to continue to stay in business," Currier told the agencies.
"You know, we can't continue to operate farms and ranches if we're constantly having to try to get permits for what we do, and that applies not just to land that we own but to land we lease."
Currier said about 80% of the land in western Colorado is public land, including on his operation.
"Whether it's with grazing permits where we run our cattle on the ground during the summer and the water ponds for saltwater," he said, "many of our irrigation facilities begin on public lands, whether it's small reservoirs on national forest land, or water diversions and canals. We need to be able to continue to maintain those facilities without having to run get a permit every time a different agency decides that it's necessary.
"It's just very important to the maintenance of a strong agricultural community that we're not over-regulated, that we have certainty that we can continue to operate our farms and ranches the way we've been doing for 150 years."
Travis Smith, vice president of the Colorado Water Congress, said rural communities are experiencing "WOTUS fatigue" with the recent back-and-forth of regulatory changes in the past decade.
"There is a growing distrust of the federal government," Smith told the agencies. "And I have nothing but respect for my friends and associates in the federal agencies, but I think that needs to be recognized in rural communities."
Smith said the ag community wants to know the expectations in the Clean Water Act, so they can be "good neighbors" when it comes to water resources.
When it comes to the San Luis Valley of Colorado, Smith said he's concerned poor and impoverished communities' voices are not heard when it comes to WOTUS or other federal rulemaking.
"I would suggest EPA representatives in Albuquerque or if they're in Salt Lake City, they need to drive to the vast areas of the Southwest, get out of their pickup, walk over the hill and look at the dry washes and the intermittent streams," Smith said.
"We are challenged by the ever-changing federal water-quality standards. This affects small communities all across the Southwest. Small towns and villages are economically challenged and unable to engage in even today's conversation. When we talk about underserved communities, tribal communities, you can't avoid talking about poverty. We have poverty in the San Luis Valley. San Luis Valley has three counties in the top four. It's not a list that you want to be on the lowest median-income level in the state of Colorado.
"It is very difficult for them to actively engage in rulemaking of any kind."
"Farmers to EPA: Need Partners, Not Regs," https://www.dtnpf.com/…
"WOTUS Roundtable Panelists: Regulate Ag," https://www.dtnpf.com/…
Todd Neeley can be reached at
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