Oklahoma Farm Report - NCBA's Mary Thomas Hart says U.S. Agriculture a Clear Definition of WOTUS

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NCBA's Mary Thomas Hart says U.S. Agriculture a Clear Definition of WOTUS

Fri, 29 Apr 2022 09:07:17 CDT

NCBA's Mary Thomas Hart says U.S. Agriculture a Clear Definition of WOTUS The National Cattleman's Beef Association admitted their state affiliates, offering an amicus brief to the Supreme Court regarding the Sackett v. EPA case that will be argued later this year at the U.S. Supreme court. Senior Farm and Ranch Director, Ron Hays talks with Mary Thomas Hart from the Environmental Council of the NCBA about that brief, and the latest going on with WOTUS, or Waters of the U.S.

We can expect to hear oral arguments on the Sackett vs. EPA case, Hart said, in October. NCBA filed an amicus brief in support of the Sackett family, she said, arguing for a clear and limited definition of WOTUS.

"In addition to the brief admitted by NCBA, there was also a brief submitted by other agricultural organizations and some individual farm owners who submitted briefs in support of the Sackett," Hart said. "I think that we are sending a clear message to the Supreme Court that the agriculture industry is certainly impacted by the definition of WOTUS and really needs a clear definition and needs this issue to be settled once and for all."

The decision of Sackett v. EPA, will give some direction on how much government control may be in the cards for Waters of the U.S.

"I think there are two things we would love to see in a ruling from this Supreme Court," Hart said. "This case considers how federal courts across the country and administrative agencies should interpret the Rapanos decision from back in the early 2000s. In that case, we got two competing tests for whether something is a federally jurisdictional water feature."

The two tests were expansive government control, versus a limited government approach.

"The test from Justice Kennedy is called a significant nexus test and that's a pretty vague concept and definitely relies on a lot of case-by-case determination," Hart said. "The other test from the Rapanos case was called the relative permanence test, and that was written by the late Justice Scalia,"

Courts across the country, Hart said, struggle with which test the Supreme Court wants them to interpret and we have seen that in EPA as well.

"We have argued to the Supreme Court that both tests should be satisfied in order for a feature to be jurisdictional," Hart said. "So, not only should it have relative permanent flow and sufficient surface connection to downstream waters, but it should also have a significant Nexus to downstream water quality."

This can be measured by the presence of visual indicators, Hart said. Those features that are federally jurisdictional are going to be the features that most significantly contribute to downstream water quality, she added.

"In our brief to the court, we made sure to note that determining that a feature isn't federally jurisdictional, doesn't necessarily mean that it is not going to be regulated, it just means that that feature is left up to state and local management," Hart said. "Across the country, we have really regionally unique water features, and the best people to manage those water features are not the EPA and the Army Corps of Engineers. It is the state government and local governments to the extent that they want to do that."

To read Sackett v. EPA, Click Here.
To read the interpretation of the Rapanos/Carabell Supreme Court Decision, Click Here.

To Listen to more of Ron's conversation with Mary Thomas Hart on WOTUS, click the LISTEN BAR below.

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