EPA Releases New WOTUS Rule
On May 25, 2023, the Supreme Court released a decision for Sackett v. Environmental Protection Agency, which focused on Waters of the United States (WOTUS) under the Clean Water Act (CWA). In the ruling, the Supreme Court eliminated the significant nexus test and criticized the rulemaking of the Environment Protection Agency (EPA). In the summary by Jordan Dux, Nebraska Farm Bureau (NEFB) senior director of national affairs, he mentions how although it was a major victory for members, the EPA was back to the drawing board and we would need to hold them accountable to ensure any new rule adheres to the principles the Supreme Court gave us. Mark McHargue, NEFB president, released a statement that “Farm Bureau and the farm and ranch families we represent remain willing to help EPA craft a new rule that respects landowners, state regulatory authority, and our nation’s waters.”
On August 29, the EPA released their new rule regarding WOTUS under the CWA. The “new rule” is nothing more than a slightly trimmed version of the previous 2023 rule and does little more than cut out the significant nexus test that the Supreme Court explicitly invalidated. It blatantly ignores both the concerns shown by the justices during Sackett, and those voiced by stakeholders.
Not only does the rule ignore these shortcomings, but it also bypassed the steps required for a new rule under the Administrative Procedures Act (APA). They released the rule without any public notice or comment at all, claiming they had the power to do so under the “good cause” exception because the procedures would be “impracticable, unnecessary, or contrary to the public interest.” They also made the rule effective immediately “because this rule does not impose any burdens on the regulated community.”
Despite their rebuke from the Supreme Court, the EPA has clearly not learned their lesson about making proper regulations. Time and again, the Biden EPA under Administrator Regan has had an opportunity to develop a WOTUS rule that protects water, but also respects private property rights and the rights of states to protect the waters found within their own borders. Unfortunately, despite Farm Bureau being openly willing to work with the EPA on crafting the rule, the EPA did not ask for input before releasing it and have again failed to deliver.
In the rereleased rule, the EPA chose to continue using their old interpretation of “relatively permanent”, which already had an injunction in Nebraska, meaning that interpretation could not be enforced. Because it was unchanged, that injunction still exists for the new rule. Because Nebraska was part of the lawsuit involved in that injunction, agencies within Nebraska should be applying the pre-2015 interpretation of “relatively permanent”, which uses the guidance provided by the Justice Scalia opinion in the 2008 case Rapanos v. United States.
For nearly a decade, NEFB along with organizations that represent farmers, ranchers, businesses, home builders, golf courses, and everything in between, have worked to ensure any changes to federal WOTUS rules were workable, understandable, and limited the reach of the federal regulatory agencies. We again call on EPA to go back to the preverbal table to draft a new rule that both protects historically regulated water, and allows farmers to farm, ranchers to ranch, and businesses to operate without fear of federal regulators.
NEFB Opposes Proposed Changes to Endangered Species Act
Nebraska Farm Bureau submitted comment last week on three rules proposed by the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS). These rules would make multiple changes which Farm Bureau opposes, with a couple being the most notable.
First, the new rules would state that listing, reclassification, and delisting of species under the Endangered Species Act must be made without considering economic or other impacts of the decision. This would make it much more difficult to determine the overall effect. Farm Bureau believes it is beneficial to have information about the entire overall effect of decisions and urged the agencies to reconsider this change.
Second, the rules would give threatened species the same protection as endangered species unless FWS specified otherwise. This is a reinstatement of the “blanket 4(d) rule” that Farm Bureau supported eliminating in 2019. Using broad rules like this increases regulation in areas where it is unneeded. Farm Bureau does not support blanket rules like this and believes the regulations should be specific for each species listed.
Lastly, the rules would change how FWS and NMFS interact with other agencies during the rulemaking process, intending to give themselves more input on the decisions of other agencies such as the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers. This will create more confusion regarding the scope of work each agency does, and Farm Bureau advocated to leave this section as it was.
Farm Bureau hopes that the FWS and NMFS reconsider the actions they have proposed. There were positive changes made to the rules in 2019, and we do not believe there is a good reason to revert the rules to how they were. Farm Bureau will continue to monitor the issue moving forward and will ensure the voice of members is heard.
Policy Development Guides Available Online
Having good information is critical in evaluating agriculture policy issues. There’s always more to the story and digging into the issues is important. Our policy development guides are meant to be a resource for members looking for background information on higher profile agriculture issues to help them make informed recommendations as part of Nebraska Farm Bureau’s policy development process.