NICK GOSNELL
Hutch Post
HUTCHINSON, Kan. — Roger McEowen, the Professor of Agricultural Law and Taxation at Washburn University School of Law is dubious about the latest iteration of the Waters of the United States rule that the Biden administration has put out in light of the Sackett Supreme Court decision.
"They have, on the surface, gotten rid of the significant nexus standard, which the court said that they can't follow," McEowen said. "They did all of this without any pre-published notification. They used a rare good cause exception under the Administrative Procedures Act, which allows them to forgo public comment and just put a rule out. Nobody's commented on this. We haven't had a chance to really analyze it."
The precedent that the administration will use may make things marginally better, but ag producers are not out of the woods at this point.
"What they will rely on is a Supreme Court decision out of 2000 out of Maui," McEowen said. "It's called Hawaii Wildlife Fund v. County of Maui. They gave us a very broad interpretation, the U.S. Supreme Court did, of what a discharge of a pollutant is. That still creates the distinct possibility that a contamination of a federal jurisdictional water, a WOTUS, could result from activities on land that's not subject to the Clean Water Act under the Sackett court's definition of a wetland. I think that's where we're at right now."
The Texas Farm Bureau says WOTUS is still enjoined in Texas and 26 other states, blocking implementation of the rule.
"They'll try to enforce their new position," McEowen said. "We're going to end right back up in court."
The EPA and the Army Corps of Engineers will host a public webinar on September 12, 2023 to provide updates on the definition of WOTUS.