Groups file lawsuit challenging the latest WOTUS rule

Several agriculture groups have filed a lawsuit in the Southern District of Texas challenging the Biden administration’s Waters of the United States rule. 

Mary-Thomas Hart, chief council for the National Cattlemen’s Beef Association, says the definition is an attack on America’s farmers and ranchers. “We continue to fight to make sure that whatever definition comes out of EPA is going to provide farmers and ranchers really necessary regulatory clarity while also not extending federal jurisdiction beyond the limits of the Clean Water Act,” she says. 

She tells Brownfield that agricultural exemptions added in the final rule for stock ponds, prior converted cropland, and certain farm ditches lacks regulatory certainty for producers.  “You have to spend a lot of time and money on consultants, on attorneys, on engineers to even determine as a feature on your property is subject to Federal Regulation,” she says. 

She says there has been litigation and regulation over the definition of the Waters of the US rule since the Clean Water Act was enacted in the 1970s. Hart says each court ruling made on the topic of WOTUS provides the ag sector a bit more clarity and certainty and groups are currently waiting on the Supreme Court to release its decision on the Sackett case which it heard oral arguments on in October 2022.

“Finding a definition that will work for landowners including farmers and ranchers, bit also protect our nation’s water supply,” she says.  “Farmers and ranchers get a bad rap I this conversation because people don’t realize how much we do rely on having clean water.  Not only for our livestock, but our families and also our communities.”

The American Farm Bureau, the National Corn Growers Association, the National Pork Producers Council, the Texas Farm Bureau, and the US Poultry and Egg Association were also part of the suit.

In a statement, NCGA President Tom Haag says “our feedback fell on deaf ears, leaving us with no other option than to join this lawsuit.”

American Farm Bureau Federation Deputy General Counsel Travis Cushman tells Brownfield the goal of this Waters of the United States lawsuit is to stop the rule before it goes into effect in March. 

“I think most farmers and ranchers would agree, they should be able to know what they can or can’t do on their land without hiring a team of lawyers or consultants. This new rule makes it unclear.”

Cushman says Farm Bureau has issues with many parts of this new rule, including the doubling down of the test used to determine what is WOTUS and specifics on wetland regulations. Farm Bureau liked the Navigable Waters Protection Rule from the Trump Administration’s EPA. This lawsuit is one of the first challenges to the updated WOTUS rule, but Cushman tells Brownfield other lawsuits could follow.

AUDIO: Mary-Thomas Hart, National Cattlemen’s Beef Association

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