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NMPF to EPA on WOTUS: We Told You So!

June 8, 2023

The Supreme Court on May 25 handed EPA a devastating ruling, restricting its jurisdiction over Waters of the U.S. (WOTUS), a move agricultural groups and landowners are praising and that NMPF predicted in earlier statements.

The court’s 5-4 decision was led by the conservative justices and featured three other concurring opinions that agreed with the outcome but differed in how to reach the conclusion that the Sackett property was not subject to the Clean Water Act’s jurisdiction. Moving forward, federal jurisdiction will be limited to traditional navigable waters and adjacent wetlands with continuous surface connection to those waters.

NMPF released a statement on EPA’s new WOTUS rule in January which said that “NMPF is disappointed that once again dairy farmers, who every day strive to be leaders in environmental stewardship, may need to live under a WOTUS rule that is cumbersome, unclear and overly complicated. Because the EPA’s most recent iteration fails to resolve what is now a 50-year struggle to define what constitutes a water body subject to federal regulation under the Clean Water Act, our members will face continued uncertainty as they attempt to comprehend and comply with unclear regulations.”

NMPF also repeatedly told EPA not to issue any rule until the Supreme Court ruled on Sackett v. EPA this year because of the high likelihood that the Supreme Court decision would alter any new WOTUS rule. The only surprise, one shared by many in agriculture, was how forcefully the court’s decision limited EPA’s authority.

While it is clear that the new WOTUS rule is essentially dead, the mechanism for how that will occur is yet to be determined, as EPA can either withdraw the rule on its own or a federal court judge with WOTUS cases before them can throw out the rule. In either case, EPA will certainly write yet another WOTUS rule, one expected to be seen more favorably in agriculture given the narrowed scope created by the Sackett ruling.