AFBF, NCBA and Others File Legal Challenge to New WOTUS Rule

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The American Farm Bureau Federation and 17 other organizations are challenging the new Waters of the U.S. Rule in a lawsuit.

AFBF Deputy General Counsel Travis Cushman says the new WOTUS rule once again gives the federal government sweeping authority over private lands. “So, the EPA just came out with another rule which doubles down on the significant nexus test, which is this unworkable test for jurisdiction of when the federal government regulates farms and ranches. And so, we filed our lawsuit to stop it.”

Cushman says the new rule is vague and creates uncertainty for agriculture. “We think that a farmer and rancher should not have to hire a team of lawyers and consultants to figure out what they can and cannot farm on their land. This rule doubles down on that and we simply want to respect the limits of the Clean Water Act and what a farmer can and can’t do on their land.”

The new rule comes as AFBF and others await a pending decision from the Supreme Court in the case Sackett v. EPA, related to a former version of the rule.

“It highlights how insane it is that EPA is going through with this rulemaking now. That decision, which could come out at any time now, will likely delineate the scope of what the Clean Water Act is. For the EPA to try to jump the gun here and do something before the Supreme Court says what the proper limit is, makes no sense. And it creates more confusion in an area that has already been with confusion for the past 10 – 20 years now.”

“The Biden Administration’s WOTUS definition is an attack on farmers and ranchers, and we’ll be fighting back in court,” says Mary-Thomas Hart, chief counsel for the National Cattlemen’s Beef Association. “The rule removes longstanding exclusions for small and isolated water features on farms and ranches and adds to the regulatory burden farmers already face.”

Non-agriculture groups in the lawsuit include the American Petroleum Institute, the Associated General Contractors of America, and many others.

“The new rule creates uncertainty for farmers and ranchers even if they’re miles from the nearest navigable water,” says Farm Bureau President Zippy Duvall. “We believe a judge will see these regulations exceed the scope of the Clean Water Act.”

A Supreme Court decision in Sackett v. EPA could require the EPA to start over again on defining WOTUS.

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