A coalition of agricultural and other business groups is suing the Biden administration over a new environmental regulation aimed at protecting temporary waterways from pollution.
The National Cattlemen’s Association (NCBA) led the charge, including groups such as the American Farm Bureau Federation and the National Pork Producers Council.
The lawsuit challenges the legality of the rule change, which expands the Environmental Protection Agency’s authority to regulate hazards for small and intermittent streams, wetlands and other water bodies.
These “ephemeral streams” carry water only at certain times of the year or after heavy rain. But they make up a large percentage of total stream miles in the United States and are essential to water quality — especially in western states like Arizona, where they make up the bulk of the state’s waterways.
Agricultural groups have long argued that these streams should not be subject to federal regulation under the Clean Water Act. The law protects water quality by regulating the dredging, filling, and discharge of pollutants into waterways designated as “waters of the United States.”
That category will now include temporary streams in some cases.
The new rule marks a rough middle ground between the positions of past administrations. The Obama administration protected those streams, but the Trump administration has lifted those protections. The Biden administration’s rule splits the difference by sometimes giving those streams some protections.
One NCBA spokesman described the new approach as lacking “common sense”.
“My cattle operation in southwest Virginia has a creek that only carries water after big storms,” rancher and NCBA policy vice president Gene Copenhaver, a Virginia cattle producer, said in a statement.
Under the new rule, Copenhaver said, “we could be subject to complex federal regulations.”
The plaintiffs — who also included business groups ranging from mining to home construction — objected to the inclusion of the term “contiguous” waters in the Dec. 30 rule.
They say the language would give the federal government jurisdiction over wetlands that don’t physically touch navigable waters.
But environmental advocates oppose the regulation, which is meant to further protect the nation’s wetlands and waterways.
The lawsuit by NCBA and others was “their response to the sounding board,” said Austin Frerick, a Thurman Arnold Project Fellow at Yale who studies agricultural consolidation.
“I don’t take it seriously. They are constantly kicking and screaming at the smallest thing. They want as much taxpayers’ money as possible, but without any obligations.”
Even more significant, Frerick suggested, was the fact that the Biden administration split the difference between Obama and Trump.
The administration “is stalling on dusting off old Obama administration regulations related to agriculture,” he said.