Farm groups are among the dozens of industry trade associations expressing concern that the Environmental Protection Agency will try to retain broad authority to regulate discharges into non-navigable waters despite a recent Supreme Court ruling.
Courtney Briggs, a director of government affairs at the American Farm Bureau Federation who chairs the Waters Advocacy Coalition, which represents a wide variety of industry groups, said they are concerned about EPA’s stated intention to conduct a “surgical fix” of the Biden administration's rule redefining the jurisdiction of the Clean Water Act.
The Supreme Court decision found that wetlands on the property of Michael and Chantell Sackett were not “adjacent” to navigable waters and therefore, beyond the EPA and Army Corps of Engineers’ jurisdiction under the Clean Water Act. In order to be considered “adjacent wetlands” under the CWA, they must be “indistinguishable” from waters of the U.S., the court said.
The Biden administration’s “waters of the U.S.,” or WOTUS, rule was not technically at issue in the case, but it relies on a “significant nexus” test that had been used since it was crafted by former Justice Anthony Kennedy in a 2006 case.
A “significant nexus” is defined as when “wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity’” of WOTUS.
EPA and the Corps said they would reissue a new rule by Sept. 1, but without asking for public comment. They are using the “good cause” exception under the Administrative Procedure Act, which allows an agency to forgo public comments if it has good cause to believe it is "impracticable, unnecessary, or contrary to the public interest.”
“We are kind of afraid that they're going to use the 2023 WOTUS rule as the base text, and then go in and simply strike ‘significant nexus’, slightly, alter the definition of adjacency, and then put that out in the Federal Register and say, ‘well, it complies with Sackett,’” said Adam Pugh, program manager for environmental policy at the National Association of Home Builders, a member of the Waters Advocacy Coalition.
In a July 24 letter to EPA and the Corps, the Waters Advocacy Coalition said the standard going forward should be the test articulated by late Justice Antonin Scalia in the 2006 Rapanos plurality opinion, so called because it was endorsed by four judges.
Justice Samuel Alito, writing for the majority in Sackett, said “the Rapanos plurality was correct: the CWA’s use of ‘waters’ encompasses ‘only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’”
Adam Pugh, National Association of Home Builders
“Sackett leaves no doubt that the Rapanos plurality’s test for jurisdiction, as further clarified by the Sackett majority, governs moving forward,” the Waters Advocacy Coalition said in its July 24 letter.
Environmental groups said after the Sackett decision came out that half the nation’s approximately 100 million acres of wetlands are now at risk. The groups criticized Alito and the majority for ignoring the scientific underpinning of the “significant nexus” test.
“The majority’s decision is terrible news for those who care about clean water,” said Kirti Datla, director of strategic legal advocacy at Earthjustice, a nonprofit environmental law firm. “You’ll hear people say, ‘Things will be fine! States will step up!’ No. Nearly half of states borrow the CWA definition, so anything that isn’t a WOTUS isn’t protected.”
Pugh said Alito's opinion makes it clear that "biological impacts are out and chemical impacts are out. So, I think it is very clear that moving forward you need that direct physical connection” to demonstrate jurisdiction.
Another concern of the industry groups is the Army Corps of Engineers’ decision to halt work on issuing wetlands jurisdictional determinations or issuing permits for “approved jurisdictional determinations” of wetlands that were made relying on the Trump administration’s now-defunct 2020 Navigable Waters Protection Rule, which the Biden administration replaced.
EPA and the Corps should “affirm unconditionally that NWPR AJDs remain valid for their full five-year terms, and rely on NWPR AJDs to make new permit decisions if that is how the applicant wishes to proceed,” the Waters Advocacy Coalition said in its letter.
Corps districts are now dealing with a backlog of pending permit decisions, industry officials say.
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“Even if the agencies do complete a final rule by September 1, 2023, and resume issuance of AJDs at that time, the months-long backlog will make it impossible for our members to obtain an AJD or permitting decisions in a timely manner,” the National Mining Association said in a July 11 letter to EPA and the Corps. “By the time they do obtain an AJD, their projects could be a year or more behind schedule."
Responding to questions from Agri-Pulse, a Corps spokesperson said it has "temporarily paused issuance of approved jurisdictional determinations (AJDs) except for dry land AJDs and all exclusions specified in rules currently in effect, as the agencies review the [Sackett] decision and consider next steps."
The Corps said it "continues to accept and process permit requests," but Pugh said the permit process is stalled.
"Given the recency of the Supreme Court’s decision in Sackett v. Environmental Protection Agency, the Corps is not currently able to determine the full permitting workload implications," the Corps said.
Congress passed a Congressional Review Act resolution to invalidate the Biden rule, but President Biden vetoed the resolution, leaving the rule intact.
Opponents of the Biden rule say they’re not sure what their legal path forward will be after the new rule is released.
But Prianka Sharma, vice president and counsel, regulatory affairs, at the American Road and Transportation Builders Association, said that the administration's use of the “good cause” exception for the accelerated revision process is problematic.
Prianka Sharma, American Road and Transportation Builders Association
She said the good cause provision is intended for making “administrative, ministerial changes to a rule, or if there was a public emergency that required issuing a rule without notice and comment.”
Briggs said that by skipping the public comment process the administration isn't "doing any stakeholder engagement. Obviously, that's very concerning to our nation's farmers and ranchers.”
Briggs said she made those concerns clear in meetings at the Office of Management and Budget, which also included EPA officials. A host of industry groups have met with OMB as the Sept. 1 deadline approaches, including the AFBF and the Waters Advocacy Coalition.
Meetings between federal officials and outside groups began July 27. Most of the groups have represented industry interests, but a group representing former EPA officials is scheduled to meet at OMB on Wednesday, and the Natural Resources Defense Council has a meeting on Thursday.
“With the court having gotten so much wrong, we’re now facing a tough situation: the Clean Water Act will be unable to achieve the purpose Congress designed it to accomplish,” NRDC Director of Water Policy Jon Devine said online.
He said legislation is needed to address the gaps in federal authority created by Sackett. But with “congressional action … often waylaid by partisan blockades and endless delay,” Devine said environmentalists need “to advocate for increased federal funding to conservation programs that can be used to incentivize landowners not to develop such areas or to restore degraded ones.
“Similarly, we must push state, tribal, and local water decision-makers to use their own authorities by enforcing wetland and other water body protections currently on the books and we must ensure those enforcement agencies are adequately staffed and funded,” Devine said.
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