By Ben Parker, Georgia Farm Bureau
The Biden administration’s Waters of the U.S. (WOTUS) rule, released in January, was controversial because it proposed egregious federal overreach. Groups from all over scrambled to mitigate the consequences and prevent the rule from taking effect.
Among these attempts was a Congressional Review Act (CRA) resolution of disapproval initiated by several U.S. House and Senate members. This legislative tool allows Congress to formally disapprove of actions taken by federal executive agencies. If both chambers pass a CRA and the president does not veto it, agency rules can be overturned. The House and Senate passed a joint resolution of disapproval, but President Biden promptly vetoed it.
Without the votes needed to overturn a veto, it seemed farmers and property owners were doomed to abide by environmental standards dictated by the rule’s inconsistent significant nexus test. This meant the Environmental Protection Agency (EPA) would police any waters it found “significantly affected” traditional navigable waters in a chemical, physical or biological capacity.
Despite congressional disapproval, the EPA and Army Corps of Engineers persisted in implementing the rule before the U.S. Supreme Court issued a decision in Sackett v. EPA, which challenged the constitutionality of the significant nexus test.
States refused to accept defeat and sought justice through their own federal appeals. Georgia Attorney General Chris Carr co-led a lawsuit against the WOTUS rule on behalf of 26 states. This yielded two U.S. District Court preliminary injunctions giving 26 states a 2023 WOTUS reprieve. A third judge granted the 27th state a temporary stay of the rule.
These three rulings marked a massive win in the fight against the vague WOTUS rule. With over half of the country protected by the courts’ WOTUS interpretations, it became abundantly clear something was wrong with the EPA’s rule.
We congratulated those involved with the previously mentioned court cases, yet earnestly awaited the decision that could mark the final nail in the coffin for WOTUS 2023. On May 25, the Supreme Court issued a unanimous decision ruling in favor of Sackett.
The 9-0 outcome found the “significant nexus test” an unlawful and unreasonable method of asserting federal authority. The court stated this test is an instrument meant to drastically increase the federal grasp over not just bodies of water, but dry lands located miles from the nearest “navigable” body of water.
This marked a massive stand by the Supreme Court as every justice rejected the position of the EPA, preventing unforeseen influence over private lands.
The EPA and Army Corps are rewriting the WOTUS rule in an expedited regulatory draft process, using the good cause exemption, which allows them to bypass the public comment period. We see this as another attempt to issue blind rulings exempt from the voices of those it will impact. The Waters Advocacy Coalition, which involves dozens of organizations including AFBF, sent recommendations on how the Biden administration should proceed while abiding by the latest Supreme Court ruling.
Ben Parker is the Georgia Farm Bureau National Affairs Coordinator. He may be reached at firstname.lastname@example.org or 478-474-0679, ext. 5217.