NCBA Seeks Clean Water Act Clarity

If you've ever owned the same piece of land since 1972 the year the Clean Water Act became law, you've operated under 14 different definitions of the Waters of the US. National Cattlemen's Beef Association. Chief Counsel, Mary Thomas-Hart, Administrator,

Lee Zeldin, who's the new EPA Administrator, made two pretty substantial announcements. First, they dropped a guidance document that pulled back some of the prior more aggressive enforcement activity from the Biden administration and then opened up a Request for Information docket for 30 days, so the agency is basically seeking input from regulated stakeholders as they try to create some finality in this WOTUS space.

Thomas-Hart says that questions remain for landowners and farmers trying to apply WOTUS on their operations specifically what guidance they need from the EPA to confidently make preliminary determinations on whether a feature falls under federal regulation.

“That's what EPA ran into in the 2023 Sackett decision, when the Supreme Court held that the significant Nexus test, which has kind of been the basis for all of our WOTUS definitions for the past 20 or so years, was not only a violation of the Clean Water Act, but a constitutional violation.”

As she says, a landowner has a due process right to know when they are violating the Clean Water Act.