NCBA is talking about the fate of the Waters of the U.S. Rule.
It caused uncertainty for the better part of two decades, and a 2023 Supreme Court decision could provide some clarity.
According to NCBA Chief Counsel Mary-Thomas Hart, “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 their WOTUS implementation. And so, the Trump administration has started the process of getting recommendations from regulated stakeholders, and really, 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 do work with other agencies like USDA to develop guidance. So we’ll see what path they take, but I’m optimistic that this agency, this administration again, made WOTUS a real priority.”
Moving forward, Hart says that NCBA’s ideal WOTUS rule is not that far off from what has already been written.
“Our ideal WOTUS rule, you know, 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 really 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 adds.
Hart says that some waters in the U.S. just should not be regulated, calling over-management a waste of limited and valuable federal resources.
