34 Nebraska Cattleman September 2023 Issues Update By Mary-Thomas Hart Chief Counsel, National Cattlemen’s Beef Association NCBA Holds EPA Accountable After Supreme Court WOTUS Ruling All of agriculture breathed a collective sigh of relief when the Supreme Court issued its ruling in the case Sackett v. EPA, providing some clarity on Waters of the U.S. (WOTUS). The core question of the case was whether the Environmental Protection Agency (EPA) and Army Corps of Engineers had overstepped their authority when determining if small, isolated bodies of water could be regulated by the federal government. The WOTUS issue has impacted cattle producers for decades. From the Obama WOTUS rule that declared every small pond and puddle a “water of the U.S.” to the Trump Navigable Waters Protection Rule that scaled back the government’s authority, cattle producers were left with new surprises as each successive presidential administration crafted new rules. The Biden administration was no different. Early drafts of the Biden administration’s WOTUS rule showed the removal of longstanding, bipartisan exclusions for agriculture. These exclusions made sure that little water features commonly found on farms and ranches – like prairie potholes, prior converted cropland, playa lakes or creeks that only flow when it rains – were not regulated that same way as the oceans, large rivers or lakes. Even as the Biden administration was crafting their own WOTUS rule, the Supreme Court was considering the Sackett case. The Sackett family who brought the case forward were not cattle producers. In fact, they were homeowners in Idaho seeking to build their dream home before the Army Corps of Engineers came in and declared their property a “wetland” under the jurisdiction of the federal government. The Sacketts spent years litigating this issue in court before the Supreme Court finally ruled that the federal government had gone too far. Supreme Court decisions are often more impactful because of their precedent than the actual situation at play. This decision will allow the Sacketts to build their dream home, but the precedent set by the court will impact agriculture, energy, construction and numerous other industries for decades to come. The importance of precedent is why the National Cattlemen’s Beef Association (NCBA) filed an amicus brief before the court. Written by our in-house attorneys, the brief supported the Sackett family’s position and explained to the court how their decision involving a family and their dream home would have ramifications for farmers and ranchers across the country. We were thrilled to see Justice Alito incorporate NCBA’s arguments in the Supreme Court’s decision, showing that the court seriously considered the cattle industry’s needs as they deliberated on this case. Even though the Supreme Court’s ruling is a tremendous win for the cattle industry, the fight on WOTUS is not over. The ruling only sets precedent but does not strike down the Biden administration’s harmful WOTUS rule. Typically, an agency would automatically retract a rule that does not comply with a Supreme Court decision, but the EPA decided to take no action. NCBA jumped in immediately and filed a motion for summary judgement in the U.S. District Court for the Southern District of Texas. We had previously filed a lawsuit against the Biden WOTUS rule in this same court when the rule was finalized earlier in the year, and a motion for summary judgement is a way of asking the judge to make a decision now rather than going through a long trial process. Our motion sought to strike down the Biden WOTUS rule entirely, but the court instead put the case in abeyance, meaning it is temporarily paused while the EPA rewrites their rule. We are still concerned with the EPA’s WOTUS rewrite process, especially because EPA officials have said they believe a new rule only needs to make minor “surgical” changes to be compliant with the Supreme Court. NCBA disagrees. We believe the only way for the EPA to comply is to fully rewrite the rule from the beginning. The “surgical” changes would have meant that EPA could skip some parts of the federal rulemaking process, like providing proposed rules that are open to public comment. Instead, our push for a complete rewrite would provide another opportunity for the cattle industry to review their new proposal and file comments with the agency in a much more transparent process. As of July, the federal judge in Texas decided to grant EPA’s request to stay, or pause, the case while the agency crafts a new rule. Under the ruling, the EPA is required to notify the court and parties like NCBA whenever a new rule is finalized. The EPA must also provide status reports every 45 days while the stay is in place. As the EPA goes back to the CONTINUED ON PAGE 45
RkJQdWJsaXNoZXIy NTMxNTA5