Ag Groups to Court: Vacate Biden WOTUS

Ag Groups Motion Texas Court to Vacate Biden Waters of US Rule as EPA Starts Rewrite

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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A federal court in Texas will consider a motion by ag groups to vacate the Biden administration's waters of the U.S. rule. (Photo by Tim-Evanson-(cc-by-sa-2.0)

LINCOLN, Neb. (DTN) -- Agriculture groups asked a federal court in Texas to strike down the Biden administration's waters of the U.S. rule (WOTUS) even as the EPA announced this week it would rewrite and issue a new proposed rule by Sept. 1.

Ag groups led by the National Cattlemen's Beef Association, American Farm Bureau Federation and others filed a motion for summary judgement in the U.S. District Court for the District of Southern Texas in Galveston on Wednesday, telling the court the recent ruling by the Supreme Court in Sackett v EPA establishes the Biden rule as "unlawful."

The Texas court previously issued a preliminary injunction against the rule for the states of Texas and Idaho.

The ag groups asked the court to require the EPA and the U.S. Army Corps of Engineers to apply the Supreme Court's decision as the "operative framework" for making jurisdictional determinations and approving permit applications, until the administration promulgates a new rule.

The Supreme Court declared unlawful the agencies' use of the significant-nexus test when making Clean Water Act determinations.

The EPA motioned for a stay in a lawsuit filed in a federal court in North Dakota this week, telling the court the agency will be issuing a new proposed rule by or before Sept. 1.

"Business plaintiffs' members and their clients who operate in every state remain subject to that rule in the 23 states in which it is not enjoined," the ag groups said in their Texas motion.

"Worse, although Sackett determines the agencies' jurisdiction in the vast majority of circumstances, the Corps has announced that it will not issue AJDs (jurisdictional determinations) anywhere until the agencies promulgate a new rule, putting business plaintiffs' members and their clients at continuing risk of criminal and civil penalties for ordinary use of their property. Only vacatur of the rule, agency adherence to Sackett to process AJDs and permits and prompt promulgation of a new rule can end this arbitrary roadblock to the lawful use of the land."

NCBA's Chief Counsel Mary-Thomas Hart said in a press release, "A full rewrite of the Biden administration's WOTUS definition is the only path to comply with the Sackett decision."

In its motion for summary judgement the ag groups said the court should "immediately supply clear directions to Corps offices and other stakeholders that ephemeral and isolated waters are no longer jurisdictional" and that jurisdictional determinations should reflect that.

"Delay in providing clear direction perpetuates the conduct for which the agencies were admonished in Sackett," ag groups said.

"There is no warrant for the agencies, after nearly two decades during which they unlawfully expanded their authority by imposing a significant nexus test on land users, to continue to hold the threat of criminal and civil sanctions over businesses for ordinary land uses now that the Supreme Court has established clear jurisdictional rules."

Read more on DTN:

"EPA Plans WOTUS Rewrite by September,"…

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Todd Neeley

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