Senior Farm and Ranch Broadcaster, Ron Hays, is talking with the National Cattlemen’s Beef Association Chief Counsel Mary-Thomas Hart about the latest update on the Waters of the U.S. rule.
In an earlier conversation with Hays, Hart was disappointed in the Biden Administration’s EPA’s implementation of WOTUS. She said., “I think the Biden EPA acted out of spite after the Sackett decision. They implemented the rule that they were required to implement, but then sent out some internal guidance to staff across the country saying that they need to take a pretty aggressive approach to implementing WOTUS, and staff across the country did that.”
Hart was hopeful that the Trump administration would pull back some of those internal measures so that day-to-day operations would once again align with the true intent of the Sackett decision.
About a week ago, EPA Administrator Lee Zeldin indicated intentions to begin resolving issues left by the Biden administration by making WOTUS more farmer- and rancher-friendly.
Hart noted the long association between WOTUS and the significant nexus test, which is a legal standard used to determine if wetlands and tributaries fall under the Clean Waters Act by assessing whether they have a more than insubstantial or speculative effect on the chemical, physical, or biological integrity of traditional navigable waters. However, in the Supreme Court Sackett v. EPA decision, the significant nexus test was ruled not compatible with the Congressional intent of the Clean Water Act.
It determined that the only waters that were considered WOTUS are relatively permanent waters and wetlands that have a continuous surface connection to other relatively permanent waters.
“So now, EPA is tasked with applying and defining those terms,” Hart explained. “They started with continuous surface connection, so we were really excited to see that guidance. and then in addition to releasing that guidance, EPA announced that they would be collecting information from stakeholders for the next thirty days. That notice was posted to the federal register.”
She emphasized that the terms need clarification and her team at NCBA is looking forward to working with EPA to ensure that the definition and implementation of WOTUS across the EPA, Army Corp of Engineers, and state regulators, conform with the intent of the Sackett decision.
According to Hart, cattle producers have always asked to be able to look at the land and water resources that they manage and know whether or not any of it is subject to federal regulation.
“That hasn’t been the case for a long time,” Hart said. “In the Sackett decision – a unanimous 9-0 decision – the Supreme Court held not only more aggressive prior definitions of WOTUS violated the Clean Water Act, but they also found constitutional violations because a landowner has a right to know when they might be violating a law, when they might be subject to criminal penalties.”
Because the Clean Water Act includes criminal penalties, the EPA owes it to landowners and other stakeholders to ensure clear and easy-to-understand definitions of WOTUS, relative permanence, and continuous surface connection.
“Our goal at the end of the day is regulatory certainty and a WOTUS standard that can stand the test of time,” Hart concluded.
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 at the top of the story for today’s show and check out our archives for older Beef Buzz shows covering the gamut of the beef cattle industry today.
