Farm groups are taking the Environmental Protection Agency and the U.S. Army Corps of Engineers to court on the new Waters of the United States Rule. They believe the Biden administration’s new WOTUS rule exceeds the scope and the intent of the Clean Water Act. It also gives the federal government sweeping authority over private lands.
The groups charge the WOTUS definition is an attack on producers and removes longstanding, bipartisan exclusions for small and isolated water features and farms and ranches. NCBA says it creates a regulatory burden and they’re challenging the rule to ensure cattle producers are treated fairly under the law. They also argue the new rule is vague and creates uncertainty for America’s farmers and ranchers. Ethan Lane, Vice President of Government Affairs for NCBA says, “The uncertainty of these different rule makings and the ping pong back and forth is a big part of the problem here. From year to year and from administration-to-administration producers are left trying to determine what is their impact or exposure is to these regulations given who happens to be in charge at any given time.”
This lawsuit is playing out at the same time the Supreme Court is expected to release a decision in early 2023 on the Sackett verses EPA case, which also challenged WOTUS. Lane says they’re asking for an injunction until then as they’re concerned EPA will charge headfirst on controversial rulemaking. “There are timelines in place for litigants to make sure that our voice is on the record in a timely manner as a rule like this is moving forward and one of our obvious first sort of objectives there is to secure some sort of injunction from this new rule going into effect while this is still all up in the air.”
NCBA previous filed technical comments on the rule, highlighting the importance of maintaining ag exemptions for small, isolated and temporary water features, like ephemeral streams that only flow with large rain events. Lane says regulating these features under the Clean Water Act disrupts normal ag operations and interferes with cattle producers’ abilities to make improvements to their land.
The American Farm Bureau Federation has also joined in the lawsuit. President Zippy Duvall says they believe a judge will rule in their favor and force EPA to develop rules that enable producers to protect natural resources, while still ensuring they can continue to produce food for the world.
