Texas, Ag Ask for WOTUS Injunction

LINCOLN, Neb. (DTN) -- The state of Texas and interest groups led by the American Farm Bureau Federation have asked a federal court to stop the implementation of the Biden administration's new waters of the U.S. rule, in motions for a national preliminary injunction filed in federal court.

Texas filed a lawsuit against WOTUS on Jan. 18, 2023, and a total of 18 interest groups including the agriculture, oil and housing industries filed suit on Jan. 19, in the same U.S. District Court for the Southern District of Texas in Galveston.

Texas and the ag groups said in motions this week the court should stop the EPA and the U.S. Army Corps of Engineers from implementing the rule.

"The rule abandons any limitation to waters that impact interstate commerce, relying on an arbitrary 'significant-nexus' test that strays far from any legal authority," Texas said in its motion.

"Texas asks the court for an injunction to support the public interest and prevent irreparable harm to Texas' sovereignty, its agencies' core objectives and incurrence of unrecoverable costs to comply with a rule unlikely to survive review."

The state argues in its motion the WOTUS rule effectively asserts jurisdiction "over non-navigable, intrastate waters based solely on whether the use, degradation, or destruction of the water could affect interstate or foreign commerce."

Texas said the rule "unlawfully expands" federal jurisdiction and "arbitrarily casts federal authority over a remarkable array of water features (or dry land).

"The issue before the court is whether Texas must incur the burden and expense of complying with a federal 'clarification' while Texas challenges that rule as federal overreach," Texas said in its motion.

Texas said it was likely to succeed on a challenge to the rule because it "does not comply with the plain language" of the Clean Water Act or Supreme Court precedent.

RULE CONTRADICTS CWA

In their motion for an injunction also filed this week, the groups led by the American Farm Bureau said the rule should be enjoined because it threatens farmers and ranchers.

Farm Bureau is joined in the legal action by several other ag groups including the National Cattlemen's Beef Association, National Corn Growers Association, National Pork Producers Council, Matagorda County Farm Bureau, Public Lands Council, Texas Farm Bureau and U.S. Poultry and Egg Association, as well as the American Petroleum Institute and other construction and housing groups.

"The rule contradicts the statute it is meant to enforce, allowing assertion of federal jurisdiction over water and land no matter how remotely connected to a navigable water, if there even is any such connection," the groups said in their motion.

"The rule is also hopelessly vague, leaving the regulated community guessing as to whether their lands include WOTUS, and at risk of severe criminal and civil sanctions for making ordinary use of their property. Further, the rule is an impermissible attempt to resolve an extraordinarily important question of the scope of federal regulatory authority over countless geographic features found in every corner of the nation. But such major questions must be answered by Congress, not by executive branch agencies."

WILL OF CONGRESS

As it relates to the intent and will of Congress with the Clean Water Act, Texas said the rule does an "end run" around the congressional limitation by "broadly defining" WOTUS to include "interstate waters, impoundments, tributaries, adjacent wetlands and other water features without any consideration of those waters' navigability."

Texas makes several legal arguments in the motion, including that the new WOTUS rule is "unconstitutionally vague" and that "each category of water asserts jurisdiction far beyond that supported by the Clean Water Act."

The state said the public interest concerns with the new rule are similar to those of the 2015 rule. Texas had asked the same court for and was granted a preliminary injunction.

"This court found that the 'fourth factor pertaining to the public's interest in this matter that tipped the balance in favor of granting an injunction and did so to an overwhelming degree,'" Texas said in its motion.

The Biden rule is to take effect on March 20, 2023.

"The plaintiffs' irreparable harms take many forms, including intrusion into Texas's sovereignty over intrastate land and waters, and the unrecoverable compliance costs that will unnecessarily burden Texas despite the improbability the rule will survive judicial review," Texas said.

WOTUS EXPANDS SCOPE

Farm Bureau and the other interest groups said the agencies have written a rule that expands jurisdiction beyond the scope of the CWA.

"The rule makes clear that the agencies intend to exert CWA jurisdiction over a staggering range of wet features, whether they are large or small; permanent, intermittent, or ephemeral; flowing or stagnant; natural or man-made; interstate or intrastate; and no matter how remote from a physical connection to actual navigable waters, and even if they lack a physical connection at all," the motion said.

"The consequences of the breathtakingly broad rule are severe. To start, the permitting process is expensive and imposes significant burdens on individuals and businesses seeking to make productive use of land. The broad scope of land and water features for which permitting will be required under the rule imposes tremendous costs on the regulated community."

When it came to the 2015 rule, the same court enjoined the rule in just half of the country.

"This court should enter a nationwide injunction. Plaintiffs have members in every state, and only a nationwide injunction can spare them from harm caused by the rule," the ag groups said.

"A patchwork regulatory landscape of the sort that resulted from the challenges to the 2015 rule, which was enjoined in half the country, would leave many of plaintiffs' members subject to an unlawful rule that interferes with their businesses and use of their land."

Read more on DTN:

"Texas, Ag Groups Sue EPA on WOTUS Rule," https://www.dtnpf.com/…

"Rancher: Ag Overwhelmed by WOTUS," https://www.dtnpf.com/…

"EPA's Snyder Says Final WOTUS Rule Brings Clarity to Farmers, Ranchers," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @DTNeeley

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