Ag Continues to Swing at WOTUS Zombie

Legal Battle Now Shifts to Texas Court for National Injunction

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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Agriculture groups are appealing a recent court decision on the 2015 waters of the United States, or WOTUS, rule. (DTN photo by Chris Clayton)

OMAHA (DTN) -- With the 2015 waters of the United States, or WOTUS, rule now in effect in half of the country, a number of agriculture and other industry groups are continuing the court fight.

The groups have turned to the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia, in an attempt to overturn a South Carolina district court ruling that threw out the EPA's new rule to delay the implementation of the 2015 WOTUS rule by two years.

In addition, the groups led by the American Farm Bureau Federation, National Cattlemen's Beef Association, National Corn Growers Association, National Pork Producers Council, South Carolina Farm Bureau, Texas Farm Bureau and U.S. Poultry and Egg Association, have asked the U.S. District Court for the Southern District of Texas in Galveston, to issue a national injunction on the 2015 rule.

Agriculture and other industry interests, along with state attorneys general, have fought a legal battle that at times appeared won against the 2015 rule, only to see the rule come back as it did last week.

Back in February 2018, the ag groups asked the Texas court to issue a preliminary injunction against the 2015 rule.

In a notice filed with the Texas court Aug. 16, the agriculture groups expressed a sense of urgency to the court about issuing the injunction in light of the decision in South Carolina.

On Aug. 16, WOTUS took effect in 26 states after a federal judge in South Carolina issued a nationwide injunction on the EPA rule that delayed the implementation of the Obama-era regulation. The rule remains on hold in 24 states after a series of district court decisions in North Dakota and Georgia.

"The result is that the WOTUS rule has now come into effect for the first time in nearly three years, but only in the 26 states where preliminary injunction is pending," the groups said in the notice to the Texas court. "This court's resolution of plaintiffs' pending motion for a preliminary injunction is now extraordinarily urgent."

The groups said "irreparable injuries inflicted by the WOTUS rule's enforcement are immediate. As we have explained, the ability of plaintiffs' members to plan their projects and organize their affairs is highly sensitive to the scope of the agencies' regulatory jurisdiction under the Clean Water Act. Allowing the WOTUS rule to come into effect in 26 states will prove enormously disruptive to their operations, and indeed to the entire national economy."

With the ruling last Thursday, the 2015 rule now is in effect in Iowa, Illinois, California, Washington, Oregon, Tennessee, Texas, Vermont, Virginia, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, Mississippi, Minnesota, Michigan, Massachusetts, Maryland, Maine, Louisiana, Hawaii, Delaware and Connecticut.

Because of court actions in other cases, the 2015 rule remains on hold in Georgia, Alabama, Florida, Indiana, Kansas, North Carolina, South Carolina, Utah, West Virginia, Wisconsin, Kentucky, South Dakota, Missouri, Alaska, North Dakota, New Mexico, Idaho, Arizona, Nebraska, Montana, Arkansas, Nevada, Colorado and Wyoming.

A federal judge in the U.S. District Court for the District of South Carolina ruled Aug. 16 that the EPA did not follow the Administrative Procedures Act in finalizing its rule to delay the 2015 WOTUS for two years. That action by EPA was designed to allow the agency to complete a rewrite of WOTUS. A proposed new definition of WOTUS is currently under review by the Office of Management and Budget.

The legal wrangling that has occurred since Obama's EPA finalized the 2015 rule still leaves the nation divided on the Clean Water Act rule, with the rule in effect in some states but not in others. The rule redefined which wetlands and small waterways are covered by the Clean Water Act. Many farmers and ranchers feared the change would lead to increased government regulation of their land.

After EPA finalized its rule to delay WOTUS in February, several environmental groups and states sued the agency, arguing it had rushed the rulemaking process.

The suspension rule would have given the agency until 2020 to complete a rewrite of WOTUS. Following the court decision last week, it reverts back to the U.S. Supreme Court ruling, which found that appeals courts do not have jurisdiction on the WOTUS issue. Instead, that jurisdiction lies with the district courts, the Supreme Court ruled. Two district court decisions wiped out the 2015 rule in the 24 states, leaving the remaining 26 states where the rule remains in effect.

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Todd Neeley