The National Cattlemen’s Beef Association is disappointed by a federal judge’s ruling that would have halted the Biden administration’s latest rule on the Water of the United States.
U.S. District Judge Jeffrey V. Brown of the Southern District of Texas highlighted issues with the nexus test that the Biden administration used in this rule, and also with the administration’s assertion that it has absolute authority of every interstate feature in the country regardless of its size or whether it contributes to downstream water quality.
While this decision was disappointing, beef association legal counsel Mary-Thomas Hart said the judge offered a detailed opinion in response to NCBA’s request for a nationwide preliminary injunction of the Biden administration’s WOTUS definition.
“I think it is worth noting that if you are in Texas or Idaho, you are not going to be subject to the Biden WOTUS rule,” Hart said. “There was a preliminary injunction applied in two states; but for the other 48 states, the Biden administration’s rule takes effect on Monday, March 20th.”
The Environmental Protection Agency finalized the latest WOTUS rule at the end of 2022. NCBA and its litigation partners filed a lawsuit seeking to overturn the rule on January 18, 2023. NCBA sought a nationwide preliminary injunction, which would have prevented the federal government from implementing the WOTUS rule until the entire case is decided. Instead, the court granted a limited injunction in only two states — Texas and Idaho.
“We asked the court for this preliminary injunction either through litigation of the rule on the merit, or through the Supreme Court’s issue of the Sackett opinion, which we expect in the next few weeks,” Hart said.
With this new rule in effect, Hart advised any producers who are considering starting any new projects that may involve the manipulation of a water feature on their property to seek out technical assistance beforehand.
One issue NCBA has with the recent rule, Hart said, is the gray area surrounding whether or not certain water features such as those that do not contribute to downstream water quality would be subject to federal jurisdiction.
“There is a lot of uncertainty for producers,” Hart said. “I would say definitely be cautious going forward, at least for the next few weeks until we hear from the Supreme Court.”
Hart also talked about why Judge Brown in the Southern District of Texas was not in favor of the nationwide injunction.
“I think we have seen a real kind of cautious approach to this idea of a nationwide preliminary injunction, especially from more conservative judges that don’t want the federal government to take a heavy hand in regulating landowners across the country,” Hart said.
It is a conservative principle to not enact sweeping mandates that cover everyone in the country, Hart said, so while in this case that decision was not favorable, in the past it has been helpful to have judges who do not favor nationwide preliminary injunction.
“Just because Judge Brown didn’t give us the nationwide preliminary injunction, doesn’t mean that he doesn’t see some real issues with the Biden rule,” Hart said. “We got a really helpful opinion from this court even though the outcome wasn’t necessarily what we were looking for.”