EPA Wants Judgement in NY WOTUS Case

Legal Action Continues on Water Rule in Multiple Jurisdictions

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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Though the EPA has proposed a rewrite of the waters of the United States rule, a number of court actions continue. (DTN file photo by Chris Clayton)

OMAHA (DTN) -- The EPA is expected to ask a federal judge in New York to rule in its favor on a lawsuit challenging the delay of the 2015 waters of the United States, or WOTUS, rule, according to a document filed last week announcing plans to file for summary judgement.

Attorneys general of 10 states and the District of Columbia sued the EPA in February, alleging the agency's final rule suspending the WOTUS rule is unlawful. A motion for summary judgement asks a court to rule on the merits of the case without a trial taking place. In addition, the states filed a prior similar motion, asking the U.S. District Court for the Southern District of New York to rule in their favor.

New York's attorney general is leading a coalition of 10 states and the District of Columbia in challenging the EPA's action. New York is joined by attorneys general from California, Connecticut, Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, Vermont, Washington and the District of Columbia. The Natural Resources Defense Council filed a similar lawsuit in the same court.

Earlier this year, the U.S. Supreme Court ruled the appellate court level was not the proper venue for challenges to the 2015 WOTUS rule. The action essentially ended the nationwide stay on the rule. As a result, EPA issued a final rule to delay the WOTUS rule's implementation until 2020. The delay is designed to give EPA time to rewrite the rule to include a different definition of jurisdictional waters.

The states and District of Columbia claim in a lawsuit filed in the U.S. District Court for the Southern District of New York that the EPA's two-year delay fails to take science into consideration.

The plaintiffs argue that the 1980s regulations that EPA's suspension rule returns the waters of the United States rule back to, "Do not provide the protection to the States' water quality that is provided by the clean water rule."

The attorneys general say they rely on the federal Clean Water Act rule and its "uniform nationwide floor of pollution controls" as the "primary mechanisms for protecting them from the effects of out-of-state pollution.

The states said the delay in the 2015 rule "puts the states at an unfair economic disadvantage in competition with other states."

Also last week, 17 agriculture and other industry groups led by the American Farm Bureau Federation moved to intervene in a lawsuit filed in the U.S. District Court for the Southern District of Georgia, in a lawsuit filed by the state of Georgia and other states challenging the merits of the 2015 rule. In addition, the groups asked the federal court in New York to dismiss the lawsuit.

On June 12, the court issued a preliminary injunction to suspend implementation of the rule in 11 states. Those are Georgia, Alabama, Florida, Indiana, Kansas, North Carolina, South Carolina, Utah, West Virginia, Wisconsin and Kentucky.

The 2015 rule also is on hold in South Dakota, Missouri, Alaska, North Dakota, New Mexico, Idaho, Arizona, Nebraska, Montana, Arkansas, Nevada, Colorado and Wyoming as part of an ongoing similar case in North Dakota.

Back in March 2017, the EPA and the U.S. Army Corps of Engineers announced plans to rewrite the WOTUS rule. That rewrite is expected to consider the opinion of the late Justice Antonin Scalia in Rapanos v. The United States in 2006. In recent weeks, EPA sent a new proposed rule to the Office of Management and Budget for review.

The Rapanos case involved a Michigan landowner who filled in a wetland without a permit. A circuit court ruled that because the wetland was adjacent to a tributary, the wetland was considered to be a jurisdictional water.

The U.S. Supreme Court disagreed with the lower court, and a plurality of the high court ruled the Clean Water Act did not give broad authority over all waters.

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

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(SK/AG)

Todd Neeley