The American Soybean Association (ASA) is calling on lawmakers to take legislative action to prevent the measure from taking effect. ASA specifically cites the nexus test—language in the rule that EPA says it will now use to determine the level to which a smaller body of water connects to a larger one for the purposes of establishing jurisdiction under the Clean Water Act—as exceeding both the intent of Congress and the rulings of the Supreme Court. ASA First Vice President Richard Wilkins, who farms in Greenwood, Del., noted that EPA is erroneously using a minority opinion from the Supreme Court to expand its jurisdiction.
“The proposed rule wrongly applies the nexus test to waters nationwide by placing jurisdiction over any water that may have a nexus to waters covered under the Clean Water Act,” said Wilkins. “While EPA has said that the rule creates no additional requirements with regard to normal farming practices, it is the broad nature of the nexus test that leaves enough open to interpretation that it could be argued the rule eventually applies to unlimited bodies of water, no matter their size or actual connectivity to waters already under jurisdiction. Also, in making its decision, EPA has adopted only a minority opinion of the Supreme Court and one that has been considered by only a minority of federal circuit courts.”
Wilkins added that it is the end goal of certainty for farmers that has been at the core of ASA’s effort on this issue, and in the absence of that certainty, Congress should step in and block the rule.
“The Clean Water Rule—and before it the Waters of the U.S. rule—was meant to establish certainty by spelling out exactly which types of water are and are not covered by the Clean Water Act. That is a productive goal, and one we fully support, but unfortunately the way the nexus test is applied in this most recent rule it creates far more uncertainty and risk,” Wilkins said. “At this point, the only constructive course of action is for the House and the Senate to step in and prevent this rule from going forward.”