Published 8:00 am Monday, July 3, 2023
National Cattlemen’s Beef Association, along with the American Farm Bureau Federation and 16 other groups, has filed a motion in U.S. District Court for the Southern District of Texas asking the court to vacate the Biden administration’s Waters of the U.S. rule nationwide.
The move follows the U.S. Supreme Court’s unanimous opinion in Sackett v. EPA finding that the rule’s “significant nexus” test to determine what waters are federally regulated violates the Clean Water Act, creating a wholly new standard for making that determination.
The motion was necessary because EPA and the Army Corps of Engineers have said they believe they can make some small adjustments to the existing WOTUS definition without going through the normal rulemaking process, Mary-Thomas Hart, NCBA chief counsel, said in an audiocast.
“We’re very concerned. We have a number of issues with the Biden administration’s WOTUS definition, and we want to make sure that all of those are resolved. Going to federal court is the best way to make that happen,” she said.
The rule needs significant changes to meet the court’s standards, she said.
“It’s going to have to be some real major revision just because the significant nexus standard is the cornerstone of this definition and without that, you undermine everything that’s in that definition,” she said.
EPA has not responded to Capital Press’ request for comment.
A notice on the agency’s website states EPA and the Army Corps are developing a rule to amend the final “Revised Definition of ‘Waters of the United States’” rule, published in the Federal Register on Jan. 18, consistent with the U.S. Supreme Court’s May 25 decision in the case of Sackett v. EPA. The agencies intend to issue a final rule by Sept. 1.
Hart said she’s extremely pessimistic that regulators can make the fixes that are necessary to comply with the law without going through substantive notice and comment rulemaking.
“So hopefully by the end of the summer, we will hear from the federal court … and hopefully we can achieve that nationwide vacatur that forces the agencies back to the drawing board,” she said.
The administration’s WOTUS rule is currently on hold in 27 states as a result of three separate lawsuits. But people in the other 23 states are subject to the rule, she said.
She said NCBA staff have heard is the administration doesn’t want to enforce a faulty or illegal definition — so instead of just following the guidance of the Supreme Court, the Army Corps has paused all of its jurisdictional determinations.
That holds up progress on new infrastructure, new building projects, things that keep the economy moving, she said.
“I do think that there is some sense of urgency, not only among stakeholders but within the agency as well to get some resolution,” she said.
NCBA and Farm Bureau are joined in the motion by Public Lands Council, National Pork Producers Council, National Corn Growers Association, U.S. Poultry and Egg Association, state and county Farm Bureaus and organizations representing infrastructure, housing and mining.
