Ag groups are seeking to stop the WOTUS census in light of the SCOTUS review

Just stop.

This is a message from agricultural groups to the Environmental Protection Agency and the Army Corps of Engineers as they seek to come up with a new definition of “US water”.

In the comments provided by the department, many agricultural enterprises and government agencies referred to this A recent Supreme Court ruling to consider whether the U.S. Ninth District Court of Appeals “established a proper test to determine whether wetlands are“ United States waters ”under the Clean Water Act.

Deadline for granting by the court c certiorari in a case involving two Idaho landowners means that oral disputes are likely to take place this spring and a decision will be made in a few months.

“Given the recent decision of the Supreme Court to review the proper jurisdiction of the agencies in accordance with [Clean Water Act]agencies should suspend rules before a court ruling, ”the Federation of American Farmers ‘Bureaus and other prominent farmers’ groups said in comments. And the National Association of State Departments of Agriculture said that after the decision of the Supreme Court EPA and the Corps will have to start a new regulation.

“Continuing to consider the proposed definition, which may be declared invalid, is not an efficient use of the agency’s resources. Sacket decision, and it is not fair to regulated stakeholders, ”the National Livestock Association, the Public Lands Council and subsidiaries said in comments.

“Such actions by the agencies are only exacerbating the regulatory shocks that, unfortunately, await WOTUS stakeholders,” the NCBA said, using US water sterilization and asking agencies to shut down.

EPA Administrator Michael Regan has said he wants to create a “strong” definition of WOTUS. (Photo: Joy Philippi)

The EPA did not comment on the trial and said through a spokesman that “it is in favor of establishing a strong definition [WOTUS] which draws on diverse perspectives and protects the health of the population, the environment and neighboring communities by supporting economic opportunities, agriculture and clean water-dependent industries ”.

The first step in creating this “robust definition” is to propose a “fundamental rule” that, the agencies said, would return “in general” to the way agencies determined which waters had jurisdiction before 2015. It was then that the Obama administration issued a rule that received ambiguous admission to the courts until the Trump administration repealed it in 2019 and adopted its own language – the Navigational Water Regulations – in 2020.

This rule was repealed by two district courts last year, and the EPA and the Corps have promised to work out a rule that will stand the test of time – and revise its courts.

But the agency’s proposal to return to rules and recommendations by 2015, linked to existing Supreme Court rulings, has met with serious criticism from farmers’ groups, who say the EPA (which plays a leading role in the process) is not keeping its promise of an “open process”. based on dialogue, ”the AFBF commented.

Environmental groups are generally happy with the new proposal, but would like the agencies to clearly explain how they intend to protect the country’s waterways. The Southern Center for Environmental Law (SELC), the National Wildlife Federation and dozens of other groups, for example, recommend that the agency take strong protection measures for the tributaries and clarify, “that all wetlands have significant links with traditional navigable waters, interstate waters and territorial seas (“main waters”) are protected “.

In his 2006 Rapanos decision, then-Judge Anthony Kennedy proposed a test with which four other judges agreed that wetlands are “United States waters” if they, alone or in combination with lands located in the region, significantly affect chemical, physical , and the biological integrity of other indoor waters, which are more easily understood as “navigable”.

However, farmer groups are concerned that adhering to this standard, which was adopted by the Ninth District in the Sacket case, gives agencies too much freedom.

“Although there is a ‘similar location’ in the proposed definition, agencies cannot pinpoint this term,” the NCBA said. “The lack of clarity associated with this important phrase could completely spell out the word‘ navigable ’from the CWA. The agency cannot do this without a clear mandate from Congress, and Congress had ample opportunity to do so and refused. “

Farm groups are also concerned about the regulation of previously converted farmland and the lack of specific agricultural exemptions.

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In an interview with Agro-Pulse, Scott Jaeger, NCBA’s chief environmental adviser, noted that “both the Obama administration and Trump have codified exemptions for agricultural facilities such as ponds, agricultural ponds, settling pools, irrigation ponds, flooded fields for rice cultivation, and some irrigation ditches from previous WOTUS definitions. These exceptions, in particular, are missing in Biden’s WOTUS proposal. All we have left is the exclusion of waste recycling and a hollowed-out version of the previously converted sown land. “

The AFBF stated that “the lack of a clear definition of the PCC has created problems in the past when, for example, the PCC can be” taken away “and treated as jurisdictional.” The AFBF and its farm colleagues said the long-standing exception “reflects the fact that the PCC has typically undergone such extensive modifications and degradations as a result of human activities that” harvest conditions “are normal for such lands.”

Farmers’ groups supported the PCC’s interpretation of the Trump administration’s NWPR, and the AFBF cites a 1993 rule to support the idea that the PCC no longer has the defining characteristics of wetlands (hydrology or vegetation) and no longer serves as wetlands, and thus , such lands should not be considered WOTUS ”.

Environmentalists, however, have called for a limited exclusion of the PCC. “The wetland area that was abandoned for crop production should be considered ‘United States water,'” the Natural Resources Protection Council and other groups said.

SELC said the NWPR had opened a loophole for the PCC, providing that “land would retain its excluded status if it had been used at least once in the previous five years” for or to support agricultural purposes “.

But those goals were broad, SELC said. Although the “agricultural objectives” were not defined in the rule itself, the agencies suggested that it would include a wide range of uses that do not resemble the use of land as hunting land: simple land for conservation, providing wildlife habitat and leaving land under steam, among other things ”.

The AFBF said the PCC’s land “is often used as collateral for agricultural loans” and that “knowledge that the PCC can be used for non-agricultural purposes is also valuable,” citing a study by the Economic Research Service that estimated the value at $ 2,200. per acre more than 20 years ago.

“Adjusted for inflation, the average cost of opportunities will now be more than $ 3,500 per acre,” AFBF said. “Multiply that by 53 million acres of PCC nationwide, and that’s over $ 150 billion the cost hangs in the balance when PCC exclusion decreases. Simply put, restrictions on PCC exclusion reduce the value of PCCs, threatening the prosperity of farmers and ranchers across the country. ”

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