WOTUS Showdown: NCBA’s behind-the-scenes work as ag waits on a decision from the highest court

Ag groups are closely watching for signs of movement at the nation’s high court, preparing for justices to release their opinion on the Sackett case and the future of WOTUS.

More than a dozen states currently have an injunction in place limiting the new rule’s impact, and NCBA has been closely working with the remaining to get producers some relief.

“These 26 states are states with for, I believe, all Republican Attorney General who filed to seek those preliminary injunctions. So if you’re in a state with a Democratic-led Attorney General or a Democratic-led state government, your state was less likely to file and ask for that preliminary injunction because they might be more ok with the Biden rule. We continue to engage with those states not only with the state governments but with our producers in those states, to ensure that they have the resources they need,” said Mary-Thomas Hart.

Justices began their assessment of the case last year. Shortly after, EPA finalized its rule establishing the definition of WOTUS, which led to those injunctions. EPA Chief Michael Regan said depending on what the Supreme Court decides in the Sackett case, the Agency may have to adjust its rule. NCBA says the new rule should have never been implemented in the first place.

I think one of the things we were most concerned about in this rulemaking process was the fact that the Administration, the EPA, felt it necessary to finalize a rule while EPA was actively considering this exact issue, at least in our opinion. I think it seems like a waste of limited federal resources to put a lot of time and effort into finalizing a rule not really knowing what the legal standard is going to be in six months or so. I think regardless of what we see from the Supreme Court unless they have some very narrow holding that aligns exactly with this rule, I think the Biden Administration has some more to do.”

The Sackett decision could come down this month. Farmers testified before Congress earlier this year expressing their frustrations, saying they have struggled with uncertainty surrounding WOTUS for decades.