Senior Farm and Ranch Broadcaster Ron Hays is visiting with National Cattlemen’s Beef Association Chief Counsel Mary-Thomas Hart about NCBA’s fight against the Biden Administration on the Waters of the U.S. rule.
The NCBA has joined a broad coalition suing the Biden Administration over their reluctance to move off their rule and rewrite the new WOTUS rule after the Supreme Court decision that did away with the significant nexus concept. NCBA and litigation partners filed a motion in the U.S. District Court for the Southern District of Texas asking the federal court to issue a nationwide vacatur of the 2023 Biden Administration’s WOTUS definition.
“This is following the May 2023 unanimous opinion from the Supreme Court in Sackett v. EPA, where they found that the significant nexus test was a violation of the Clean Water Act,” Hart said.
There is a lot of variation, Hart said, in how different groups of stakeholders read the impacts of the Supreme Courts’ decision, even though it was a unanimous opinion.
“The EPA and Army Corps of Engineers have now said they believe they can make some small adjustments to the existing WOTUS decision and basically give us a direct final rule that will comply with this Supreme Court standard without going through notice and comment rulemaking and without providing the opportunity for substantive stakeholder involvement in that process.”
Going to federal court, Hart said, is the best way to resolve the number of issues NCBA has with the Biden Administration.
“We filed a motion for summary judgment in federal court,” Hart said. “We will now hear a response from the agencies who are also involved in that case, and that is just the process of briefing out this motion we have made with the court.”
Hart said hopefully, NCBA will hear from the court in the upcoming months. EPA and the Army Corps of Engineers have indicated they would like to issue a direct final rule redefining WOTUS by September 1st.
“The Biden Administration’s WOTUS definition is currently on hold in 27 states,” Hart said. “So, for most of our producing states, they are not currently subject to the Biden Administration’s WOTUS rule.”
Instead of following the guidance from the Supreme Court, Hart said the Army Corps of Engineers has paused all activity on the new WOTUS rule, which halts progress when it comes to new infrastructure and more.
“I do think there is some sense of urgency, not only among stakeholders but within the agency as well, to get some resolution,” Hart said.
The only way that would make the current WOTUS definition comply with the Supreme Court’s latest ruling, Hart said, will be some major revisions.
“The significant nexus standard is the cornerstone of this definition, and without that, you undermine everything that is in that definition,” Hart said.
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