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HomeAg NewsAFB Sees WOTUS Uncertainty, Disruption Until Supreme Court Rules

AFB Sees WOTUS Uncertainty, Disruption Until Supreme Court Rules

The Environmental Protection Agency’s timing in issuing a final Waters of the U.S. rule last week, ahead of a Supreme Court decision, will only cause more disruption and uncertainty for producers, according to the American Farm Bureau.

“Considerable confusion on the ground for the regulated community.”

That, from AFBF’s Courtney Briggs on the new WOTUS rule that Farm Bureau says is still unworkable.

“That was one of the reasons we asked the agencies to wait until the Supreme Court issued a decision in Sackett, because we’re introducing a new, and frankly, confusing rule to an already very convoluted permitting process.”

Briggs says the Biden rule that replaces the Trump Navigable Waters Protection Rule will take effect 60 days after being published in the Federal Register.

Briggs agrees with the National Cattlemen’s Beef Association that the rule doesn’t clearly exempt from federal permitting, irrigation ditches, stock ponds, streams and other farm features, forcing costs on producers to figure out if they need permits.

“This rule hinges on the use of the ‘significant nexus test,’ which allows the agencies to do that case-by-case determination, but it also allows them to aggregate waters, together. So, it really does expand their reach, which is very concerning, and it’s the question before the High Court in Sackett.’”

But Briggs says what’s most telling is that the Supreme Court decided to hear the case—unusual when there’s a pending federal rulemaking. But in view of the much earlier Rapanos ruling on when a water is a U.S. wetland.

“You don’t have to be a Supreme Court justice to know that the Rapanos decision was very convoluted, very confusing, really provided more questions than answers.”

Briggs says the Justices recognize they need to “come back and provide some clarity” on when a wetland is a water of the U.S.

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