Ag Groups Intervene on Water Rule Case

Federal Case Alleges EPA Didn't Complete Due Diligence in Writing Rule

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
Connect with Todd:
Agriculture groups have intervened in a federal lawsuit challenging the Navigable Waters Protection Rule. (DTN file photo)

OMAHA (DTN) -- Agriculture, petroleum and other interests will be allowed to intervene in a lawsuit challenging the new Navigable Waters Protection Rule, a federal court ruled on Thursday.

The U.S. District Court for the District of South Carolina granted the motion to intervene, filed by the American Farm Bureau Federation, American Petroleum Institute, National Cattlemen's Beef Association, National Corn Growers Association, National Mining Association, National Pork Producers Council, North Carolina Farm Bureau, Public Lands Council, South Carolina Farm Bureau, and U.S. Poultry and Egg Association, as well as the U.S. Chamber of Commerce and several construction, transportation and electricity groups.

Alleging federal agencies completed the Navigable Waters Protection Act based on "political winds and currents," environmental groups in April filed a federal lawsuit against the rule.

The action was taken by 14 groups led by the South Carolina Coastal Conservation League. It is the second court action filed on the new rule. The first was a case filed by the New Mexico Cattle Growers Association in a federal court in that state.

The Navigable Waters Protection Act, which was published in the Federal Register on April 21, is alleged by the groups to have the effect of "dramatically reducing the universe of waters protected" by the Clean Water Act.

Environmental groups said in their lawsuit the rule was completed without "measure and deliberation" and a "fair grounding in the statutory text and evidence."

They argue the new rule "ushers in an era of unprecedented, unlawful degradation and destruction of the nation's most precious natural resource: water.

"Although the replacement rule is cast in federalist tones, the rule upsets the carefully crafted federal-state partnership at the core of the Clean Water Act's comprehensive national program to protect water quality. In the present rulemaking, the agencies have executed an about-face, abandoning the 'significant nexus' test and prior regulations implementing it."

Back in March 2017, then-EPA Administrator Scott Pruitt launched a review of the rule and hinted in an agency document that a rewrite may include the removal of the so-called "significant nexus" test, which has been the subject of many lawsuits.

The definition of navigable waters was expanded in the 2015 waters of the United States, or WOTUS, rule to include tributaries and other waters that are connected to larger navigable water bodies. The review came as a result of an executive order by President Donald Trump.

Those areas, the EPA contended, should be considered WOTUS because they are linked to streams, rivers and other traditional navigable waters by a so-called significant nexus.

Agriculture, other industry groups and state governments across the country alleged the WOTUS rule expanded federal jurisdiction to waters not traditionally protected by the Clean Water Act.

In the new lawsuit, environmental groups argue, "Past and current definitions have also protected ecologically-important ephemeral streams -- prevalent waters that flow only in response to precipitation. This rule categorically excludes them. It also removes protections for some intermittent streams -- which flow continuously during part of the year -- and some perennial streams."

In addition, the lawsuit said, "Remarkably, the agencies have also erased protections for all otherwise jurisdictional waters, including traditional navigable waters and the territorial seas, if they fit within the rule's exclusions."

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

Follow him on Twitter @toddneeleyDTN

Todd Neeley