One thing is certain for farmers regarding the latest Waters of the U.S. final rule according to the American Farm Bureau Federation: More uncertainty.
The rule comes as the Supreme Court will soon release a decision on a lawsuit against a previous version of the rule.
AFBF Deputy General Counsel Travis Cushman says the new rule goes beyond the previous rule being challenged at the Supreme Court.
“We were very disappointed to see the rulemaking come out the way it did. It fields into the oral arguments October 3 in the Sackett case, it was very clear that the Supreme Court was very uncomfortable with the significant nexus test. Yet that’s what this new rule does, it doubles down on the significant nexus test, and in some ways, it makes it go even broader. So, I think, what this does is that it creates more confusion on the farm fields, and it messes things up when we know that very soon the Supreme Court will have new guidelines for the agencies that are very different than what the EPA just now released.”
However, Cushman says, don’t expect the Supreme Court decision to end the WOTUS debate once and for all.
“So, the current case is not on this new rule, so I would believe you would probably need to have a new challenge to that rule. And that’s why they should not of put this out when they did.”
Cushman made his comments during the opening press conference of the 2023 AFBF Annual Convention in San Juan, Puerto Rico.