EPA Issues Final WOTUS Rule Even as Supreme Court Considers Legal Challenge

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The Biden Environmental Protection Agency has issued a final rewrite of Trump-era WOTUS reforms, and farm groups like National Cattlemen are crying ‘foul.” NCBA Chief Counsel Mary-Thomas Hart charges the Biden final ‘Waters of the U.S.” rule is tainted.

The rule doesn’t clearly exempt isolated or ephemeral features from federal jurisdiction, but instead, subjects both those features to case-by-case determinations, which means that farmers, ranchers, or landowners across the country could be required to pay a lot of money or spend a lot of time trying to figure out if their isolated or ephemeral features are federally jurisdictional.”

Requiring permits or resulting in added EPA enforcement. So, beyond some exemptions for drainage ditches, stock ponds, and prior-converted cropland, Hart sees the Biden rule as a reversal of Trump-era WOTUS reforms.

“This is a significant expansion beyond the Navigable Waters Protection rule, and the Biden Administration sought to find some middle ground, between the 2015 rule and the 2020 rule. So, we knew that there might be a slight expansion, but this leans much more toward the 2015 Obama rule than it does toward the Navigable Waters Protection rule.”

All that, as Hart says six of the nine Supreme Court justices that heard Sacketts vs. EPA in October, are reviewing for the first time the years-old Rapanos ruling on when a wetland is a water of the U.S. based on its permanence and nexus to a navigable water.

“They seemed quite convinced that those were failed standards, that they had watched the definition ping-pong back and forth from administration to administration, and they thought that there ought to be a new standard. So, I will not be surprised, if, when the Supreme Court issues its decision in spring, 2023, we see a completely new test and EPA is required to go back to the drawing board.”

Hart charges the timing of the EPA final rule couldn’t be worse and seeks to directly preempt the ongoing Supreme Court litigation, leaving the WOTUS question murkier than ever until the high court rules months from now. American Farm Bureau also stated that it’s “extremely disappointed” in the final WOTUS rule and charges it will impose a “quagmire of regulatory uncertainty” on private farmland miles from the nearest navigable water.

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