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EPA and Army Amend “Waters of the United States” Rule

The Environmental Protection Agency and the Army Corps of Engineers Tuesday announced a final rule amending the 2023 definition of “waters of the United States.” The final rule intends to conform with the recent Supreme Court decision in Sackett v. EPA.

With this action, the Army Corps of Engineers will resume issuing all jurisdictional determinations. The rule will take effect immediately. In response, National Cattlemen’s Beef Association Chief Counsel Mary-Thomas Hart says, “Today’s revised WOTUS definition is an important step toward bringing the EPA more in line with the Supreme Court’s ruling.”

AFBF President Zippy Duvall says the EPA chose to continue government overreach and revise only a small slice of the rule that the Supreme Court rejected. Duvall adds, “We’re pleased the vague and confusing ‘significant nexus’ test has been eliminated as the Supreme Court dictated. But EPA has ignored other clear concerns raised by the Justices, 26 states, and farmers across the country about the rule’s failure to respect private property rights and the Clean Water Act.”

Read more reaction from ag and industry groups below:

Corn Growers Disappointed in EPA’s WOTUS Rule

The National Corn Growers Association (NCGA) expressed disappointment with the revised Waters of the U.S. (WOTUS) rule that was issued today by the Environmental Protection Agency (EPA) and the Army Corps of Engineers.

“U.S. corn growers are disappointed by EPA’s revised WOTUS rule,” said NCGA President Tom Haag. “The agency failed to open the process to public comment and engagement, which would have been extremely valuable. Instead, the agency has released a rule that does not fully respect the holdings from the recent U.S. Supreme Court case on WOTUS.”

EPA released the revised rule after the U.S. Supreme Court issued a ruling in Sackett v. EPA earlier this summer that narrowed the scope of the Clean Water Act’s jurisdiction by, among other things, a unanimous decision that “significant nexus” was unlawful.

NAWG Statement on Final WOTUS Rule

Washington, D.C. (August 29, 2023) – Today, the Environmental Protection Agency (EPA) and the Army Corps announced the final definition of the Water of the United States (WOTUS) rule. The National Association of Wheat Growers (NAWG) released this statement:

“While NAWG acknowledges that the EPA and Army Corps have taken steps to address the aspects of the 2023 Waters of the US regulation that the Supreme Court’s Sackett decision rendered invalid, we cannot help but express our unease with the outcome,” said NAWG CEO, Chandler Goule. “While we recognize the intent to bring more clarity to wheat growers concerning waters subject to Clean Water Act jurisdiction, we are concerned about the repercussions for our members’ farming operations. The intricate ‘significant nexus’ standard posed challenges for our growers, both in comprehension and alignment with the Clean Water Act. NAWG is disappointed both agencies are proceeding with these regulatory adjustments without public consultation on the proposed changes prior to finalizing the regulation.”

ARA Expresses Concern on EPA’s Flawed, Unworkable Final WOTUS Rule

ARLINGTON, Va. (Aug. 29, 2023) – Agricultural Retailers Association (ARA) President & CEO Daren Coppock released the following statement expressing serious concern with the final “Waters of the United States” (WOTUS) rule announced today by the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers:

“ARA is extremely disappointed in the missed opportunity by the EPA and Army Corps of Engineers to follow the law and direction of the U.S. Supreme Court following the Sackett v. EPA decision to clearly define the jurisdiction of the Clean Water Act (CWA).

“The agencies failed to fully address all of the issues raised by the Supreme Court without adequately engaging impacted stakeholders and state agencies serving as co-regulators. Repeating mistakes will only lead to the continuation of flawed, unworkable regulations that will be litigated in the federal courts.

“ARA and other impacted stakeholders from the agricultural industry remain interested and able to work with the agencies on regulations that follow both the spirit and intent of the court.”

NCFC Statement on the New “Waters of the United States” Rule

Washington, D.C. (August 29, 2023)—“NCFC is disappointed that the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers did not fully adhere to the ruling issued by the Supreme Court decision earlier this year with their new ‘waters of the United States’ (WOTUS) rule announced today. This action is a missed opportunity to follow the Court’s guidance and resolve a longstanding issue in a commonsense way.
“By picking and choosing what to address in this new definition, the Agencies continue to further inject uncertainty for farmers and ranchers across the country. NCFC calls on the Biden administration to work with the agricultural community and other stakeholders in a meaningful way to develop a long-term solution that reflects the Supreme Court’s decision, protects true navigable waters and provides producers with the certainty they need for their operations.”

EPA’s revised WOTUS rule misses the mark for states’ rights and regulatory certainty

FOR IMMEDIATE RELEASE: August 29, 2023

ARLINGTON, Va. — With today’s release of their revised ‘Waters of the U.S.’ rule, the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers have disregarded the U.S. Supreme Court, local regulators and public stakeholders’ expertise and concerns. National Association of State Departments of Agriculture Ted McKinney shares the frustration agriculture departments across the country feel.

“The ruling in Sackett v. EPA was a chance for EPA and the Army Corps to correct a deeply flawed, prematurely released rule and work to truly improve water quality outcomes. It is baffling that the revised rule does not accurately address all the issues and questions raised by the Supreme Court in the Sackett decision, nor does it address many of the questions stakeholder groups raised about the WOTUS rule EPA released at the end of last year,” McKinney said.

NASDA repeatedly asked for engagement with and offered input to EPA and Army Corps, yet the agencies made the decision to exclude active participation not only from regulated stakeholders but also from states who share in the regulatory responsibility.

NASDA remains ready and willing to work with the agencies on a durable, clearly defined rule and aiding farmers, ranchers and local regulators in interpreting how to implement the current rule.

NASDA is a nonpartisan, nonprofit association which represents the elected and appointed commissioners, secretaries and directors of the departments of agriculture in all 50 states and four U.S. territories. NASDA enhances American food and agricultural communities through policy, partnerships and public engagement. To learn more about NASDA, please visit www.nasda.org.

 

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