WOTUS Motions Filed Friday

Groups Continue Legal Battle Against Water Rule in Georgia, New York

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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The fate of the 2015 waters of the United States rule continues to play out in federal court. (DTN file photo by Chris Clayton)

OMAHA (DTN) -- Agriculture and other industry groups on Friday took action in federal courts in two states in their continued challenge against the 2015 waters of the United States, or WOTUS, rule.

The 17 groups led by the American Farm Bureau Federation moved to intervene in a federal lawsuit in Georgia against the EPA on the 2015 WOTUS rule, and asked a federal court in New York to dismiss another lawsuit challenging the agency's delay in the rule.

In the U.S. District Court for the Southern District of Georgia, the groups filed a motion to intervene in a lawsuit filed by the state of Georgia and other states challenging the merits of the 2015 rule. On June 12, the court issued a preliminary injunction to suspend implementation of the rule in 11 states. Those include Georgia, Alabama, Florida, Indiana, Kansas, North Carolina, South Carolina, Utah, West Virginia, Wisconsin and Kentucky.

The 2015 rule also is on hold in South Dakota, Missouri, Alaska, North Dakota, New Mexico, Idaho, Arizona, Nebraska, Montana, Arkansas, Nevada, Colorado and Wyoming as part of an ongoing similar case in North Dakota.

In New York, the AFBF urged the U.S. District Court for the Southern District of New York to confirm the legality of an EPA rule that moves the 2015 WOTUS rule's implementation to 2020 in order to complete a rewrite of WOTUS. The EPA recently sent the new rule to the Office of Management and Budget for review.

In a court brief filed on Friday, the AFBF urged the court to remand the rule moving WOTUS' implementation to 2020 to a lower court rather than vacate it entirely. The fear is that vacating the rule would leave 26 states with the 2015 WOTUS rule in effect and 24 states without it.

"This court should exercise its equitable discretion to decline to vacate the applicability date rule if it finds the rule legally deficient," the brief said. "Indeed, federal courts throughout the country frequently exercise their discretion to leave regulations in place during remand in circumstances like these, where a vacatur would be highly disruptive."

Attorneys for the agriculture and other industry groups point out in the brief how the 2015 WOTUS rule violates the law.

"The WOTUS rule additionally implicates the balance of power between the federal government and the states," the brief said.

AFBF is joined in the court actions by the American Forest and Paper Association, American Petroleum Institute, American Road and Transportation Builders Association, Georgia Association of Manufacturers, Georgia Farm Bureau Federation, Leading Builders of America, National Alliance of Forest Owners, National Association of Home Builders, National Association of Manufacturers, National Cattlemen's Beef Association, National Corn Growers Association, National Mining Association, National Pork Producers Council, National Stone, Sand, and Gravel Association, Public Lands Council, and U.S. Poultry and Egg Association.

Most recently, attorneys general of 10 states, including New York, California, Connecticut, Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia sued EPA, alleging the agency's final rule suspending the 2015 rule is unlawful. The Natural Resources Defense Council also filed a similar lawsuit.

"The unlawful 2015 WOTUS rule would result in farmers and ranchers losing the ability to use their property and lost productivity," AFBF President Zippy Duvall said in a news release. "The rule would bring a massive amount of regulatory burdens and costs to all states, not only those that are plaintiffs in the lawsuit. Farmers and ranchers must be represented in this matter. The potential crushing fines and criminal liability that they could face as individuals from the flawed and unjustifiable 2015 WOTUS rule taking effect are outrageous."

The WOTUS rule, finalized by President Barack Obama's administration in 2015, sought to expand EPA and U.S. Army Corps of Engineers authority of water across the country, allowing the agencies to stop or require federal permits for any activity that would disturb the waterway. The rule changed the definition of so-called "navigable waters," and farmers and ranchers were concerned that even the smallest pond or ditch could be declared a federal waterway. Agriculture and other industry groups, along with many states, filed legal challenges against the rule, claiming it violated the federal Constitution.

After the U.S. Supreme Court ruled legal challenges to the rule belong at the district court level, district court cases previously on hold have resumed. A national stay on the rule expired when the Supreme Court rendered its decision.

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

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Todd Neeley