July 21, 2021
The U.S. District Court in South Carolina dismissed a challenge to the Navigable Waters Protection Rule written during the Trump administration and granted a remand without vacatur, ensuring the rule remains in effect until the Biden administration finalizes a new rule. Agricultural groups are engaged in litigation across the country to defend the NWPR and are pleased with this key legal victory, yet recognize more work remains as the new administration forges ahead on making its own mark on regulating water.
National Cattlemen’s Beef Association Chief Environmental Counsel Scott Yager says the NWPR is a major improvement to what he called the “widely overreaching 2015 Waters of the United States” – known as the Obama-era WOTUS rule.
“NCBA has long fought to protect private property rights and oppose the unnecessary expansion of federal jurisdiction over isolated and temporary water features. This decision is a victory for America’s cattle producers, ensuring regulatory certainty while the Biden administration moves through the lengthy rulemaking process,” Yager says.
Ellen Steen, American Farm Bureau Federation general counsel and secretary, says, “We are pleased that Judge Hendricks made the right decision to keep the Navigable Waters Protection Rule in place while the agencies consider any revisions to the rule. Farmers and ranchers care about clean water and preserving the land, and the current rule brought clarity to those efforts.”
Don Parrish, American Farm Bureau Federation senior director of regulatory relations, says the new administration has communicated mixed signals in how it plans to adapt NWPR. In action taken in June announcing their intent to change the rule from the EPA and Army Corps of Engineers, the agencies spent of number of pages talking about the cumulative cascading impacts of the Navigable Waters Protection Rule without really any kind of substantial data to back that up and also talked about gaps in protection, Parrish explains.
“Rather than being balanced, they were very, very one-sided,” Parrish says of the announcement unveiling the administration’s plan on rolling back Trump’s water rule. Instead of signaling a middle ground as EPA Administrator Michael Regan had suggested during confirmation hearings, Parrish says EPA officials signaled in Hill briefings and with those on Capitol Hill and in briefings to the ag community that the rule’s handling of prior converted croplands that were once wetlands and other specific ag provisions in the Navigable Waters Protection Rule were “problematic.” Other concerning expansions that could be coming would be a return to the Obama-era approach of ephemeral features and ditches or farm ponds.
Parrish says those in the agriculture community believed the NWPR protected the environment and water quality while also providing farmers and ranchers clarity. If EPA was seeking the middle ground, maybe they would try to pick out a few particular provisions and try to amend it, he says. But their approach so far has not indicated that is the route they look to take, he explains.
The Trump rule was based basically on a hydrologic connection of flow between a wetland and traditionally navigable water and not an ecological connection, which was fundamental to the Obama rule, explains Larry Liebesman, a senior advisor for Dawson & Associates, a prominent consulting firm that specializes in environmental permitting and authored briefs on the Clean Water Act jurisdiction over adjacent wetlands.
The 2006 Rapanos court opinion introduced the concept of significant nexus. Liebesman explains the Biden administration is going to have to somehow address the significant nexus test but in a way that doesn’t go as far as the Obama rule went which swept in largely isolated areas. “It’s going to be a very difficult balancing process,” Liebesman explains.
He expects at least a couple of years before any new proposed rule is issued, which must look at the economics, science and new rationale for changing NWPR. “They may go through the two-step process again or try to repeal the Trump rule and get that through first, before they actually come up with a replacement rule.”
Yager says NCBA opposes any federal action that hinders producers’ ability to make investments in their land and care for their cattle. “Moving forward, NCBA will continue engaging with the Biden Administration, Congress and the Courts to protect cattle producers’ property rights.”
Steen states, “We call on EPA to keep the term ‘navigable’ in the Clean Water Act and not return to flawed, overly complicated and excessive regulation. In the meantime, this decision will prevent disruption and allow farmers and ranchers to continue operating with certainty of the law.”
Top Republican leaders in the House of Representatives joined House Agriculture Committee Member David Rouzer, R-N.C., in outlining their concerns regarding the Biden administration’s intention to undo the Trump administration’s Navigable Waters Protection Rule.
The members wrote, “With all the other crises confronting our nation it makes little sense to unravel a final rule that has taken decades of agency action, litigation, and legislation to settle.”
However, if the Biden administration chooses to continue with its plans to redefine
WOTUS, the members caution: “We are concerned that the approach the agencies intend to take in revising this important regulation will regress from the clarity provided by the Navigable Waters Protection Rule, and will reimpose a vastly overbroad interpretation of federal jurisdiction over waters around the nation.”
Congressional Western Caucus and Senate Western Caucus Members, led by Chairman Dan Newhouse, R-Wash., Chairman Steve Daines, R-Mont., Rep. Mariannette Miller-Meeks, R-Iowa, and Sen. Joni Ernst, R-Iowa, wrote another letter highlighting the impacts that returning to a drastic expansion of federal jurisdiction over non-navigable waters will have on rural communities across the United States.
“Confusion, regulatory uncertainty, and litigation have surrounded the scope of federal authority of our nation’s navigable waterways for decades. With your recent actions, the Biden administration is trampling upon this progress and further jeopardizing rural Americans’ confidence that this administration is working in their best interest… Rural communities in the West and across the country are dedicated to clean water and do not deserve to be punished by far-reaching, burdensome federal regulations,” they note.
Miller-Meeks also introduced legislation with the support of 114 members of Congress expressing the sense of the House that clean water is a national priority and that the NWPR should not be withdrawn or vacated.
In June, Ernst joined Sen. Chuck Grassley, R-Iowa, and Sen. Mike Braun, R-Ind. in introducing the Define WOTUS Act, a bill to legislatively define the “waters of the United States.”
“Regulations for what falls under ‘Waters of the U.S.’ have ping-ponged back and forth for years. Farmers and families need a reasonable, practical definition for WOTUS, and that’s why Congress should do its job and define the law,” Braun says.
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