Business groups challenge new rule protecting ‘temporary streams’

A coalition of agricultural and other business groups are suing the Biden administration over a new environmental rule that aims to protect temporary streams from pollution.

The National Cattlemen’s Beef Association (NCBA) led the lawsuit, which also included groups such as the American Farm Bureau Federation and the National Pork Producers Council.

The suit challenges the legality of the rule change, which expands the Environmental Protection Agency’s jurisdiction to regulate dangers to small and intermittent streams, wetlands, and other bodies of water.

These “ephemeral streams” only carry water during certain times of the year or after heavy rain. But they make up a large percentage of the total miles of streams in the United States and are essential for water quality — particularly 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 Act protects water quality by regulating dredging, filling and the release of pollutants into waterways designated as “waters of the U.S.”

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 The Obama administration protected these streams, but the Trump administration repealed those protections. The Biden administration rule splits the difference by sometimes giving these streams some protections.

One NCBA spokesperson characterized the new approach as lacking in “common sense.”

“My cattle operation in southwest Virginia has a creek that only carries water after large storms,” rancher and NCBA Policy Vice Chair 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 homebuilding — objected to including the phrase “neighboring” waters in the Dec. 30 rule.

They say that this language will give the federal government jurisdiction over wetlands that do not physically touch navigable waters.

But environmental advocates counter the rule needs to further protect the nation’s wetlands and waterways.

The lawsuit by the NCBA and others was “the soundboard response from them,” said Austin Frerick, a fellow at Yale’s Thurman Arnold Project who studies agricultural consolidation.

“I don’t take it seriously. They are constantly kicking and screaming at the smallest thing. They want as much taxpayer money as possible, but no strings attached.”

More significant, Frerick suggested, was the fact that the Biden administration had split the difference between Obama and Trump.

The administration is “dragging its feet to dust off old regulations from the Obama Administration in regard to agriculture,” he said.