The Biden administration plans to incorporate a recent Supreme Court decision into its existing Waters of the U.S. rulemaking rather than withdraw the rule in its entirety.
Environmental Protection Agency Agricultural Advisor Rod Snyder addressed members of the National Council of Farmer Cooperatives Wednesday in Washington and informed the group of the agency's plans to “surgically update key aspects of the regulatory text to conform to the court's ruling.”
He also noted the agency plans to tweak the language already in effect in many parts of the country where a court has not blocked its implementation.
“There's just fundamentally a ton of confusion right now. We want to try to avoid that and get this done quickly,” Snyder said in an interview with Agri-Pulse. “There are certainly a number of implementation questions that we want to work on with the ag community and other stakeholders this fall to make sure that there's a clear understanding and that we're all you know, getting feedback on the implementation of the rule.”
Snyder's comments follow an EPA and Army Corps of Engineers court filing that declared the rule would be updated by Sept. 1 and a May Supreme Court decision in Sackett v. U.S. that threw out the “significant nexus” test relied upon by the agencies to establish jurisdiction.
The agencies asked a federal judge in North Dakota to stay proceedings in litigation which has already resulted in the Biden administration’s WOTUS rule being enjoined in 24 states. Another lawsuit produced an injunction affecting two other states, Texas and Idaho, and yet another one produced an injunction affecting Kentucky.
The states affected by U.S. District Judge Daniel Hovland’s injunction are Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia, and Wyoming.
“Good cause exists for this request” for a stay, the agencies said in their filing Monday, asserting that they plan to issue a final rule “on or before Sept. 1.”
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Declarations signed by EPA Assistant Administrator for Water Radhika Fox and Assistant Secretary of the Army for Civil Works Michael Connor accompanied the motion.
The new rule would amend the previous rule issued in January, which went into effect March 20.
“We feel like we have a duty to bring that rule into consistency with the Sackett ruling in a way that looks at especially the issues that the Supreme Court weighed in on,” Snyder said. He noted existing exclusions for agricultural practices will not be modified in the new rule.
Specifically, the Supreme Court ruling said it would not defer to EPA’s rationale that wetlands can possess a “significant nexus” to “navigable waters” even if they are separated from jurisdictional waters by a berm or a dike.
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