Ag Groups Take Action in WOTUS Case

Legal Battle Continues While EPA Rewrites Water Rule

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
Connect with Todd:
As EPA continues to rewrite the water rule, a number of court actions continue. (DTN file photo)

OMAHA (DTN) -- While EPA continues to draft a new waters of the United States rule, the wheels of justice keep turning, as a coalition of agriculture groups took federal court action in North Dakota on Friday to try to stop the 2015 WOTUS rule from ever becoming law.

Though EPA took action in recent months to delay the implementation of the 2015 rule by two years to allow for a rewrite, a case filed in U.S. District Court for the District of North Dakota continues.

On Friday, a number of agriculture and industry groups led by the American Farm Bureau Federation filed an amicus brief in support of motions for summary judgement. Those groups include the National Pork Producers Council, the National Cattlemen's Beef Association, the American Petroleum Institute, National Corn Growers Association and the U.S. Poultry and Egg Association, as well as other building industry groups.

In the past week, 13 states that still were involved in the pending case in North Dakota filed a motion for summary judgement in an attempt to close the books on that lawsuit. Iowa Republican Gov. Kim Reynolds also filed a motion for summary judgement to end the case.

Summary judgment is entered by a court for one party without a full trial. Such action can be based on the merits of an entire case or just specific issues in a case.

The North Dakota court had issued an injunction on the 2015 rule for the 13 states, including Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming. Those states filed a motion for summary judgement on June 1, 2018. Reynolds filed a separate motion the same day.

Once the U.S. Supreme Court ruled that the U.S. Court of Appeals for the Sixth Circuit in Cincinnati was not the proper venue to hear a myriad of cases involving WOTUS, the national stay in the North Dakota court was lifted. That action prompted EPA to delay the 2015 rule.

In getting on board with the North Dakota case, the agriculture groups argued three points as to why the rule should be thrown out.

First, they argued the WOTUS rule was "procedurally defective" and EPA "engaged in an unprecedented propaganda campaign" to promote the rule. Second, the groups argued the rule expands EPA's jurisdiction "well beyond what the CWA's [Clean Water Act] text and structure allow." Third, the groups argued the 2015 rule was unconstitutional.

The EPA faces additional lawsuits for delaying the 2015 rule. Attorneys general of 10 states and the District of Columbia sued EPA in February, alleging the agency's final rule suspending the 2015 rule is unlawful. New York's attorney general was 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 also filed a similar lawsuit.

Todd Neeley can be reached at

Follow him on Twitter @toddneeleyDTN


Todd Neeley

Todd Neeley
Connect with Todd: