EPA Opposes Ag Intervention in WOTUS

EPA Fights to Keep Ag Groups From Intervening in WOTUS Lawsuit

Todd Neeley
By  Todd Neeley , DTN Environmental Editor
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EPA is opposing a motion to intervene in a waters of the U.S. lawsuit in North Dakota, filed by ag groups including the American Farm Bureau Federation. (DTN file photo)

LINCOLN, Neb. (DTN) -- As the legal fight over the Biden administration's waters of the U.S. rule continues in federal courts, the EPA filed a motion opposing ag groups' attempts to intervene in one of the lawsuits.

The new WOTUS rule finalized in December now faces the potential of being stopped in its tracks, as multiple plaintiffs have asked federal courts to issue injunctions against the rule.

Currently the American Farm Bureau Federation and other ag groups have joined the state of Texas in suing EPA in the U.S. District Court for the Southern District of Texas. AFBF also has led a motion filed to intervene in a 24-state lawsuit on WOTUS in the U.S. District Court for the District of North Dakota.

Because of the legal action in Texas, the EPA is opposing AFBF and other business intervenors' motion to intervene in North Dakota.

EPA argues in opposition to the motion that the groups lack standing to intervene, the groups filed similar claims in other courts already, the intervention would delay or prejudice EPA's rights by "injecting a set of largely duplicative claims and arguments," and the ag groups claims can be fully adjudicated in the federal court in Texas.

"Here, not only do proposed intervenors have other, equally adequate means to protect their interests, proposed intervenors are already using those means," EPA said in its March 4 court filing.

"Nearly all the proposed intervenors have filed a complaint, a motion for preliminary injunction, and declarations in the Southern District of Texas that closely resemble their filings here. There is no reason Proposed Intervenors need to assert their functionally identical claims multiple times. Proposed intervenors' request to intervene as plaintiffs in this proceeding should also be denied on the grounds that their request violates the doctrine against duplicative litigation and claim-splitting."

EPA attorneys question the ag groups' claims the new rule would increase Clean Water Act compliance costs.

"But most of these alleged costs stem from the status quo regulatory regime, not the rule," EPA said in the court filing.

"And to the extent plaintiffs attempt to identify ways in which the 2023 rule differs from the status quo regime, their allegations of increased costs associated with those alleged differences are speculative and conclusory."

EPA said there is "no evidence" the trade associations are likely to incur "substantial future costs" with the rule.

In addition, a fourth lawsuit challenging WOTUS is pending in the U.S. District Court for the District of Eastern Kentucky.

In that case a number of business groups led by the U.S. Chamber of Commerce and the state of Kentucky have filed motions for a preliminary injunction against the WOTUS rule.

Environmental groups have motioned to intervene in the Kentucky case, including Kentucky Resources Council, Inc., National Wildlife Federation, Florida Wildlife Federation, North Carolina Wildlife Federation, South Carolina Wildlife Federation, Tennessee Wildlife Federation, Izaak Walton League of America and others.

Read more on DTN:

"Aggies Join 24-State Lawsuit vs. WOTUS," https://www.dtnpf.com/…

"Texas, Ag Ask for WOTUS Injunction," https://www.dtnpf.com/…

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

Follow him on Twitter @DTNeeley

Todd Neeley

Todd Neeley
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