A group of 17 organizations are challenging the new Waters of the U.S. (WOTUS) definition through a lawsuit against the EPA, filed Thursday.
“The EPA’s new rule doubles down on the significant nexus test, which is this unworkable test for jurisdiction of when the federal government regulates farms and ranches,” says Travis Cushman, Farm Bureau’s deputy general counsel. “We filed our lawsuit to stop it.”
The lawsuit comes as the EPA published its final definition of WOTUS on Dec. 30, which gives federal protection to large waterways, such as interstate rivers and streams, and adjacent wetlands.
Read more: EPA Releases New WOTUS Rule, with the Supreme Court Ruling Pending
The new rule largely revives a definition of WOTUS released during the Reagan-era, updated to accommodate limits the Supreme Court has placed on federal jurisdiction during the intervening 36 years.
Ag Policy Whiplash
In a press release on the lawsuit, Farm Bureau President Zippy Duvall says the rule is “vague” and puts farmers and ranchers in a position where they will have to hire lawyers and consultants to establish the boundaries of farming, which “isn’t what clean water regulations were intended to do.”
Ethan Lane, NCBA’s vice president of government affairs, echoed Farm Bureau, saying the “unjust” ruling hits too close to home.
“I’m from the state of Arizona. The ‘significant nexus’ test that determines a dry stream bed from some kind of runoff area is describing my entire home state, depending on the definition you use,” he says. “We need clarity.”
Why Rule on WOTUS Now?
The new definition and lawsuit come as the Supreme Court is evaluating a decision on another WOTUS case that could significantly impact WOTUS rulemaking, which is set to be ruled on later this year.
Read more: Water Resources Bill Reauthorized with a Component that Will Impact Producers
So, why did EPA move forward with the rule change now? Ted McKinney, National Association of State Departments of Ag (NASDA) CEO, says his team has their own theory.
“It’s rare for an organization to be that direct in state-mandated oversight in streams. Because of that rarity, we, at NASDA, believe it’s an overreach that’s political in nature—it isn’t right,” McKinney says.
According to a federal regulatory agenda posted on Jan 4., the Biden administration will revise and refine a second new WOTUS definition that EPA will propose in Fall 2023, following the Supreme Court’s decision. Only then will the WOTUS definition be officially finalized.
In keeping the second definition on the regulatory agenda, EPA will be given time to adjust to the Supreme Court’s ruling.
