WOTUS Cases Combined

Court Wants Speedy Resolution

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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Opponents of the waters of U.S. rule claim the rule would give the EPA and U.S. Army Corps of Engineers broad authority over basic farming practices simply because water may pool somewhere after a rain or fill a ditch. (DTN file photo by Richard Oswald)

OMAHA (DTN) --- Numerous legal challenges to the waters of the United States rule will be consolidated as a result of a federal court order Monday in the U.S. Court of Appeals for the Sixth Circuit in Cincinnati. The three-judge panel made the decision because of the sheer number of legal challenges filed.

The Sixth Circuit ruled in April there would be no hearing of the full 23-judge court as requested by a group of petitioners led by the American Farm Bureau Federation.

"Although the administrative record is voluminous and the parties numerous, the petitions present a limited number of legal issues and the parties represent discrete sets of interests," the court said in the order Monday, indicating that "clarity and efficiency" are important in the cases.

There are 22 petitions for review involving more than 150 petitioners. In addition, "numerous parties" have intervened in the cases, according to the order.

The rule remains on hold nationally.

The waters of the U.S. rule, commonly called WOTUS, was meant to clarify U.S. Environmental Protection Agency and U.S. Army Corps of Engineers authority over areas around waterways where the federal government has authority to either require a federal permit or stop any activity that would disturb the waterway. Opponents claim the rule would give the regulatory agencies broad authority over basic farming practices simply because water may pool somewhere after a rain or fill a ditch.

The battle over the rule continues to play out on several fronts. President Barack Obama vetoed legislation earlier this year that would have sent EPA and the Army Corps back to the drawing board in drafting a rule. On Thursday, a vote that would have prevented the agencies from implementing the rule got 56 votes but failed because it needed 60 votes to get into legislation.

Without consolidation, the court said Monday, the cases would take much longer to resolve. The order is calling for all parties involved to now prepare briefs arguing the merits of the case.

"If a maximum of one petitioner's brief per petition for review were permitted, the petitioners' briefing alone would exceed 308,000 words in length, exclusive of any briefing by intervenors or tendered briefing from those seeking to file amicus briefs," the court said. "Briefing of this length would be duplicative, unproductive, and in furtherance of no party's interest.

"Further, the court is committed to the timely resolution of these cases. Therefore, the court directs that the petitioners, through their respective liaison counsel, and the respondents, through their counsel, submit a joint proposal for a briefing plan within 21 days of entry of this order."

Agricultural and other industry groups were unconvinced legal challenges to the rule should be heard by the Sixth Circuit Court even though judges have indicated in previous rulings they may be sympathetic to those groups that claim the rule is a flawed federal overreach.

A February 2016 ruling by the court indicated a split among three justices about whether it was correct to use a pesticide sprayer case, National Cotton Council v. EPA, as a precedent for determining questions of jurisdiction. In the 2009 National Cotton Council case, the Sixth Circuit threw out an EPA rule that would have exempted pesticides sprayed on water from the Clean Water Act rules. Instead, the decision led to states requiring farmers across the country to get permits to spray pesticides.

In the petition for en banc review, Farm Bureau and other groups said the current case on WOTUS could be subject to an appeal because the justices did not reach a consensus on the National Cotton Council case.

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

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Todd Neeley