What Does Ag Really Want in WOTUS Rule?

LINCOLN, Neb. (DTN) -- The EPA removed the significant-nexus jurisdiction test from the waters of the U.S. rule this week, but the Biden administration's action drew unanimous opposition from agriculture.

Significant nexus has been a focal point of agriculture's angst with nearly every WOTUS rule finalized during the past decade except for the Trump Navigable Waters Protection Rule.

So, what exactly is agriculture looking for in a WOTUS rule?

The term that has come up most often this week is clarity.

The Trump water rule had broad support from agriculture and other groups because it was said to have provided clarity to farmers on questions of jurisdiction.

Like the Trump rule, however, the revised Biden WOTUS now excludes significant nexus.

Tiffany E. Dowell Lashmet, agricultural law specialist in the department of agricultural economics at Texas A&M, said the revised Biden rule arguably is less restrictive than the Trump rule.

"Generally speaking, the rules have some similarity in that they both adopt the relatively permanent body of water standard given by Justice (Antonin) Scalia in the Rapanos (2006) opinion," she said.

This week a list of ag-connected groups put out statements in response to the revised Biden rule. That includes the National Corn Growers Association, American Farm Bureau Federation (AFBF), National Association of Wheat Growers, USA Rice, National Cattlemen's Beef Association and others.

There are differences between the rules, however.

For example, Lashmet said the Trump rule did not include interstate waters as a jurisdictional category, the amended Biden rule does.

The Trump rule had a more-broad definition of covered wetlands including more than the amended Biden rule does, Lashmet said. The Trump rule did include a definition of "tributary" and the amended Biden rule does not.

"So, I think my summary would be that while there are some similarities, there are distinctions as well, and I am not sure whether one could claim one or the other to provide more clarity," Lashmet said.

THE WOTUS RESPONSE

AFBF President Zippy Duvall told DTN this week at the Farm Progress Show in Decatur, Illinois, that EPA missed an opportunity to develop clear rules "without having to hire lawyers and consultants."

Duvall said the revised rule contains some broad language including a section that "gives them the latitude to claim a lot of land."

Duvall said AFBF is trying to educate members about "what the rule really does so we can advocate to our members what is really in it."

The National Association of State Departments of Agriculture, or NASDA, was one of many groups expressing concern about the revised rule.

Nearly every press statement made in opposition to EPA's actions pointed to a need for a public comment period.

The EPA said this week it decided to finalize the rule because it simply was removing significant nexus and wasn't bound by notice-and-comment laws.

In the final rule, EPA said it believed a public comment period was unnecessary under the Administrative Procedure Act because the agency was only following the Supreme Court's opinion and not exercising its own discretion.

Damien Schiff, an attorney at Pacific Legal Foundation who argued the Sackett case before the Supreme Court, said in a statement that a public comment period was necessary.

"The standards for tributary and wetlands jurisdiction are notably deficient, a failing all the more remarkable given that the amended rule's preamble does correctly state the governing standards," Schiff said in a statement.

"The amended rule's inaccurate formulation of the Sackett test for tributary and wetlands jurisdiction underscores the risks of error that agencies needlessly undertake when they -- as here with EPA and the Army Corps -- choose to issue rules without the normal notice and opportunity for public comment."

SIGNIFICANT NEXUS REMOVAL NOT ENOUGH

Sarah Grace Fowler, NASDA director of communications, said it wasn't enough for EPA to remove the significant-nexus test from the rule.

"Simply striking the significant-nexus test without amending other elements of the framework that are inextricably linked to it still leaves farmers, ranchers and state regulators without a way to determine the limits of federal jurisdiction," she told DTN.

For example, EPA and the Corps of Engineers did not provide clarity for the definition of "relatively permanent" waters, NASDA contends.

"This is a prime example of an issue that should have been resolved through a public rulemaking process," Fowler said.

Fowler said NASDA "frequently conveyed" to the agencies that many issues would need to be addressed to develop a "durable definition" of WOTUS.

"We repeatedly shared with the agencies that they should wait until the Supreme Court ruled in Sackett v. EPA before releasing the initial rule," Fowler said.

"Now we find ourselves for the second time in less than a year dealing with a rule that was rushed and fails to clearly define waters of the United States."

VILSACK'S TAKE ON WOTUS

In an interview with DTN at the Farm Progress Show, U.S. Secretary of Agriculture Tom Vilsack said he believes the agencies followed the Supreme Court's directives.

"I don't think it's necessarily a negative," he said. "I mean, I think it provides some degree of certainty."

He added, "Let's be fair. The EPA on the WOTUS rule essentially made an effort. The court gave them instructions and they recently came out and complied with the court's instructions. So, it's now providing farmers with some predictability and stability and responded to some of the concerns that were top of mind by farmers and the farm bureau for example, and that's been handled by the courts."

Back in May the Supreme Court unanimously ruled the significant-nexus test was unlawful.

"The court also appeared to affirm Justice (Antonin) Scalia's relatively permanent body of water standard, which the EPA largely incorporated in the revised rule," Lashmet said.

"The majority put forth the new test for jurisdictional wetlands as the 'continuous surface connection' test, which is what the EPA adopted."

In Rapanos v. EPA, Scalia wrote that waters of the U.S. include "relatively permanent, standing or flowing bodies of water" and also wetlands with a "continuous surface connection" to permanent waters.

INTERSTATE WATERS

Lashmet said she wonders about EPA's inclusion of "interstate waters" in the revised rule without the term being limited to those that are relatively permanent, standing, or continuously flowing.

"I think that is a limitation that should apply based on the court's opinion in Sackett," Lashmet said.

"For example, if we have an ephemeral creek that crosses state lines, I do not think the court would say that is jurisdictional but this 'interstate waters' language likely would. I think that limitation needs to be added here."

Lashmet said the revised WOTUS rule also lacks a definition for tributary.

"But the rule does limit jurisdiction to those tributaries that are relatively permanent, standing, or continuously flowing, which I think is in line with Sackett," she said.

"While the rule did define 'adjacent' as 'continuous surface connection' from Sackett, it did not include some of the other language from Sackett such as it needing to be 'indistinguishable' or difficult to determine where wetland ends and water begins. I suppose that could have been included here, but since it does have the continuous surface connection language from Sackett, I'm not sure it's a huge issue but one I think at least worth flagging."

There currently are lawsuits pending on the Biden WOTUS rule, most notably in the U.S. District Court for the District of North Dakota. That case includes a legal challenge filed by 24 states. Those states received an injunction against the Biden administration, preventing the enforcement of the rule.

Read more on DTN:

"Significant Nexus Pulled From WOTUS," https://www.dtnpf.com/…

"SCOTUS Sides With Sacketts in CWA Case," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com.

Follow him on X, formerly known as Twitter, @DTNeeley

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