COLUMBIA, Tenn. — For many years, there has been consistent debate on the extent of the EPA’s regulatory authority over Waters of the United States (WOTUS). The conversation began in 2015 when the Obama administration attempted to make long-overdue changes to the WOTUS rule but, in turn, made the rule more burdensome. AFBF was involved in a collective effort to challenge the 2015 rule in court which ultimately won, effectively blocking the rule in 28 states.
This win led to the Trump administration replacing the 2015 rule with a more reasonable one in 2020, otherwise known as the Navigable Waters Protection Rule. While this rule was favorable to the agriculture community, it was eventually challenged in court. AFBF participated in the defense of six different court cases and was eventually successful in defending all of them. This work led to the Navigable Waters Protection Rule being in place for three years.
In the fall of 2022, while the Biden Administration was working on their own rulemaking, a legal dispute over WOTUS going back to 2008 made its way through the legal system and all the way to the Supreme Court. The outcome of this case, Sackett vs. EPA, will determine whether using the “significant nexus” test is within the jurisdiction of the federal government under the Clean Water Act. Oral arguments for this case were heard in October of 2022, and the Supreme Court’s decision could be announced at any time but is expected in June.
Despite awaiting this decision, the Biden Administration rang in the new year by finalizing their WOTUS rulemaking on December 30, 2022. This rule repeals the Navigable Waters Protection Rule, doubles down on the “significant nexus test”, and creates more complicated, overreaching regulations.
Since then, AFBF has been working hard to challenge this rule from many different angles. In March, Congress heard testimony from a panel of small business owners, including a Farm Bureau member and farmer from Florida, on the impact of the new WOTUS rule on farms and small businesses. Also, a district court in Texas halted the rule in Texas and Idaho and a similar case in North Dakota halted the rule in 24 other states, including Tennessee.
In early April, both the House and Senate passed a Congressional Review Act resolution of disapproval of the 2023 WOTUS rule, receiving bipartisan support. Ultimately, President Biden vetoed this measure. With the ever-changing nature of this regulation, you can keep up to date by checking www.fb.org/wotus.
–Tennessee Farm Bureau