NCBA Hopes to See Pullback on Significant Nexus in Supreme Court’s WOTUS Ruling

Listen to Mary-Thomas Hart talk about the latest on WOTUS.

Senior Farm and Ranch Broadcaster, Ron Hays, is featuring comments from Associate Farm Editor, Reagan Calk’s visit with the Chief Council at the National Cattlemen’s Beef Association, Mary-Thomas Hart. In today’s Beef Buzz, Hart talks about the Waters of the U.S. rule.

“We have had a couple of different court opinions across the country that have granted preliminary injunctions, so the first was in the southern district of Texas where we got a preliminary injunction for Texas and Idaho, and that was followed shortly after by a much larger preliminary injunction in North Dakota that granted a PI, or expanded that PI to cover 24 additional states,” Hart said. “Up to 26 states, or over half of the country, is currently protected from the implementation of the Biden administration’s WOTUS definition.”

As for the states that do not have a preliminary injunction, Hart said having the PI is dependent on where the government in those states stands. All 26 states who received the PI, Hart said, have a Republican attorney general who filed.

“If you are in a state with a Democratic-led attorney general or a Democratic-led state government, your state was less likely to file and ask for that preliminary injunction because they might be more okay with the Biden rule,” Hart said.

Hart said NCBA continues to engage with those Democratic-led states, to ensure the producers and state governments have the resources they need.

“The Supreme Court is kind of a black box, and 99.9 percent of the time, we don’t know what they are going to say before they issue an opinion,” Hart said. “I can’t speak to what is going to happen at the Supreme Court. I can tell you what we are looking for, though, and I think it is going to be pulling back on the significant nexus test, which was kind of the foundation, not only for a prior Supreme Court ruling, that hasn’t been helpful at all, but also the Obama and Biden WOTUS definition.”

If the Supreme Court pulls back on the significant nexus test in any way, then we think the Biden administration is going to have to take this rule back to the drawing board.

According to EPA Administrator, Michael Regan, the WOTUS rule should only have to be tweaked a little after the Supreme Court makes its ruling. Hart said she believes this is unlikely.

“That is ambitious, isn’t it,” Hart said. “I think just like we don’t know what is coming from the Supreme Court, the Biden administration probably does not know what is coming from the Supreme Court either.”

One of the things that was most concerning about the WOTUS rule-making process, Hart said, was that the Biden administration felt it was necessary to finalize a rule while the Supreme Court was actively considering the exact issue.

“At least in our opinion, I think it seems like a waste of limited federal resources to put a lot of time and effort into finalizing a rule, not really knowing what the legal standard is going to be in six months,” Hart said. “Regardless of what we see from the Supreme Court, unless they have some very narrow holding that aligns exactly with this rule, I think the Biden Administration has some more work to do.”

The Beef Buzz is a regular feature heard on radio stations around the region on the Radio Oklahoma Ag Network and is a regular audio feature found on this website as well. Click on the LISTEN BAR for today’s show and check out our archives for older Beef Buzz shows covering the gamut of the beef cattle industry today.

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