Where Does NCBA See WOTUS Going?

While a Waters of the United States Rule is in place, there may still be questions about the farm sector goes from here.

“We have a WOTUS rule in place. After a 2023 unanimous Supreme Court decision, the Biden administration had to kind of take their rule back to the drawing board and rewrite it to comply with this new WOTUS standard," said Mary-Thomas Hart chief counsel for the National Cattlemen’s Beef Association.  "The Supreme Court threw out the Significant Nexus Test, which was kind of what we'd been using for the last 30 years for WOTUS determinations, and they replaced that with a new, more narrow standard. So, waters that are WOTUS are relatively permanent waters and wetlands with a continuous surface connection to those waters.”

Hart looked at how the Biden administration enforced the new ruling.

“The EPA incorporated that into its role during the Biden administration, but we heard from producers and other stakeholders out in the country that, if anything, the Biden administration was being more aggressive about its WOTUS implementation," she said.  "So, the Trump administration has started the process of getting recommendations from regulated stakeholders, and, I think, trying to determine if there's a need for additional rulemaking, if they just need to develop implementation guidance, to what extent they need to work with other agencies like USDA to develop guidance, and so we'll see what path they take. But I'm optimistic that this agency, and this administration again, made WOTUS a real priority."

So, what would the ideal WOTUS rule look like for NCBA?

“Our ideal WOTUS rule, I think, is nearly 95% already on paper, right? It’s what the Biden administration created, but you know, I think some important definitions need to be established for those terms like ‘relative permanence’ and ‘continuous surface connection.” Some of the exempted categories of waters that were in prior WOTUS definitions are important to us. We're happy that some of those were maintained through the Biden rule. We would like to see, I think, a broader elimination of ditches from federal jurisdiction. We'd like to see additional clarity when it comes to ephemeral features. And you know, I think our big one is eliminating from federal jurisdiction interstate waters just because they're jurisdictional."

She added some waters in the U.S. shouldn’t be regulated.

“If a pond crosses state lines, but it doesn't connect to downstream water, if it's isolated from traditional navigable waters, then it shouldn't be federally jurisdictional just because it crosses state lines. That seems like a waste of limited and valuable federal resources to manage the quality of a feature that isn't contributing to downstream water quality,” Hart said.

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