The ag industry remains critical of the Biden administration's “waters of the U.S.” rule, asserting the EPA and Army Corps of Engineers are relying on “secret guidance” that stretches the agencies’ authority beyond the limits set by the Supreme Court.
The WOTUS rule issued by the agencies early last year was promptly undercut by the Supreme Court’s opinion in Sackett that eliminated the “significant nexus” test from their regulatory arsenal. To meet that test, regulators had to show that a water body, either by itself or in combination with other waters, “significantly affects the chemical, physical, or biological integrity of traditional navigable waters, the territorial seas, or interstate waters,” EPA says.
Sackett concluded that the Clean Water Act “extends to only wetlands that are as a practical matter indistinguishable from waters of the United States.”
Courtney Briggs, American Farm Bureau FederationThe agencies issued another rule to comply with the Sackett decision, but ag groups have said it didn't help clarify matters.
Since September, EPA and the Corps have been using implementation guidance that “apparently directs Corps officials to ‘use ephemeral features to establish a continuous surface connection' or to 'find any physical connection to establish jurisdiction, even if a hydrologic connection does not exist,'” Courtney Briggs, a senior director of government affairs at the American Farm Bureau Federation, said during a WOTUS listening session held by the two agencies for ag stakeholders Tuesday.
Russell Williams, a Texas producer speaking on behalf of the National Corn Growers Association, said NCGA is hearing reports “from around the country that large stretches of ephemeral streams far removed from navigable waters are being used to assert jurisdiction over extremely remote features, including water features that were only found to be jurisdictional under the significant nexus analysis that the Supreme Court unanimously rejected.”
EPA responded Tuesday to an inquiry about the guidance, which Briggs and others at the session said had been requested by numerous stakeholders. Without directly answering whether the charges of a "secret" guidance were true, the agency said that "guidance documents and memoranda about jurisdictional tributaries are publicly available."
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"Consistent with the Sackett decision, [EPA and the Corps] are only asserting jurisdiction over tributaries that meet the relatively permanent standard," the agency said.
The Biden administration rule is in effect in 23 states and the District of Columbia, but has been enjoined in 27 states that sued to block its implementation. In those states, the agencies are implementing regulations that existed before 2015.
The farm interests addressing EPA and the Corps said the current rule is confusing, citing in particular a lack of clarity in defining the meaning of “relatively permanent” and “continuous surface flow.”
Regarding what constitutes a “relatively permanent” water, Briggs said, “The language in the [rule’s] preamble abandons a seasonal concept and does not use any bright-line test — days, weeks or months of flow. This is really problematic for any landowner trying to comply with this rulemaking.”
National Pork Producers Council’s chief legal strategist, Michael Formica, said “the farmers I represent and their neighbors in rural America continue to hear that the Army Corps and EPA rely on seemingly secret internal guidance that's not available for all stakeholders to view and understand.”
And James Henderson, a farmer and rancher in Colorado, urged the agencies to “release the implementation guidance that's been used to the public. That can be done by the end of the week. It should not be a state secret.”
EPA and the Corps scheduled another listening session for “industry stakeholders” for Wednesday, but registration was closed.
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