States, Ag Ask Court to Vacate WOTUS

Group of 26 States, Ag Groups Seek to End Biden WOTUS Rule in Court Cases

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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Twenty-four states and numerous agriculture and other industry groups asked a federal court Monday to vacate EPA's amended waters of the U.S. rule. (DTN file photo)

LINCOLN, Neb. (DTN) -- Attorneys general for 24 states and numerous agriculture and other industry groups asked a federal court on Monday to vacate the Biden administration's amended waters of the U.S., or WOTUS, rule that removed the so-called significant-nexus standard.

In separate motions for summary judgment filed in the U.S. District Court for the District of North Dakota, the groups and states argue that EPA and the U.S. Army Corps of Engineers violated the Administrative Procedure Act and did not follow the Supreme Court's ruling in Sackett v EPA.

The Supreme Court in May 2023 ruled that the significant-nexus test previously used to make Clean Water Act determinations was unconstitutional. See: https://www.dtnpf.com/…. In September 2023, the EPA issued a final amended rule pulling the significant-nexus test. The test involved assessing flow tributary characteristics in combination with adjacent wetlands to determine what degree the two are connected.

In a summary judgment motion, the states said the agency's amended rule was unlawful.

Such a motion asks a court to make a ruling on the undisputed facts in a case. A federal judge in Texas also issued an injunction last year against enforcing the WOTUS rule in Texas and Idaho, bringing the total to 26 states where an injunction was in place.

"All nine justices unanimously rejected the significant-nexus test on which the agencies' rule partly rested," according to the states' latest motion filed in North Dakota.

"And the high court's majority dislodged load-bearing premises of the agencies' expanded WOTUS definition; among other things, the agencies' broad view was 'inconsistent with the text and structure of the CWA' and bucked key principles of statutory construction. One might have expected the Agencies to return to the drawing board and undertake a full revision. Instead, they shrugged."

The states are Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia and Wyoming. The American Farm Bureau Federation is an intervenor plaintiff in the states' action.

In April 2023, the federal court in North Dakota issued an injunction against the rule, https://www.dtnpf.com/….

Attorneys general in the 24 states argue the agencies' amended rule left unanswered many jurisdictional questions.

"Before the ink of the Supreme Court's rebuke had dried (and without going through notice and comment), the agencies put out a six-page rule purporting to 'conform' the enjoined rule," the states said in their brief.

"In this 'conforming rule,' the agencies at least excised their heavy reliance on the significant-nexus standard. But they did little to explain what was left of the enjoined rule, much less how they plan to apply it. Beyond that, they adopted a reading different from the one the Supreme Court had just prescribed. And they offered nothing to fix the 'litany' of 'statutory and constitutional concerns' that justified this court's injunction months earlier."

AG GROUPS ACT

Also on Monday, a group of state agriculture, petroleum, real estate, construction and mining interests made essentially the same legal arguments in a separate motion for summary judgment.

"For some 15 years, intervenor-plaintiffs' members and their clients had to operate under a definition of waters of the United States that reached virtually every sometimes-damp patch in the country based on a 'significant nexus' test that appeared in the concurring opinion of a single justice and had no basis in the text of the CWA," they said in their motion.

"Despite that resounding defeat, the agencies doubled down in their post-Sackett revision of the rule. Although dropping the significant-nexus test, the agencies -- without seeking notice and comment on other effects of Sackett -- have promulgated a definition of WOTUS that still vastly exceeds the authority that Congress conferred on them and flatly contradicts Supreme Court precedent, including Sackett itself."

Those groups include the North Dakota and Cass County Farm Bureaus, Associated General Contractors of North Dakota, Florida Transportation Builders Association, Home Builders Association of Central Arizona, Kansas Livestock Association, North Dakota Association of Builders, North Dakota Petroleum Council, REALTORS Land Institute, South Carolina Association of REALTORS, Southern Arizona Home Builders Association, Tennessee Road Builders Association and the Utah Mining Association.

They said the amended WOTUS rule was inconsistent with the text of the Clean Water Act and "suffers from constitutional flaws."

"It is unconstitutionally vague, subjecting the regulated community to the threat of criminal and civil penalties and activist suits for failure to comply with ill-defined terms that give the agencies unpredictable discretion to determine whether features may be deemed jurisdictional under the CWA," the groups said in their brief.

TEXAS COURT ACTION

In Texas, the states of Texas and Idaho filed a motion for summary judgment on Feb. 2, in the U.S. District Court for the District of Southern Texas, asking the court to vacate the amended rule and the 2023 rule itself and send it back to the agencies.

In addition, a group of business plaintiffs, including the American Farm Bureau Federation, American Petroleum Institute, National Cattlemen's Beef Association, National Corn Growers Association and the National Pork Producers Council, also filed a motion for summary judgment in federal court in Texas.

"Sackett conclusively rejects inclusion of all interstate waters, regardless of navigability, as WOTUS, but the rule as amended still purports to grant federal jurisdiction over all interstate waters," the business groups said in a brief.

"And as Sackett makes clear, WOTUS are only 'relatively permanent bodies of water' that are or are connected to 'traditional interstate navigable waters.' But the rule's relatively permanent test fails to provide the clarity Sackett requires, instead forcing landowners to guess whether their property contains jurisdictional features based on vague factors applied at the agencies' broad discretion."

Read more on DTN:

"WOTUS Lawsuits Restart in Fed Courts," https://www.dtnpf.com/…

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

Follow him on X, formerly known as Twitter, @DTNeeley.

Todd Neeley

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