Enviros Ask Court for WOTUS Case Stay

Groups Consider Options in WOTUS Lawsuit Following New Final Rule

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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Environmental groups have asked a federal court to stay a lawsuit challenging the EPA repeal of the 2015 waters of the United States rule. (DTN file photo)

OMAHA (DTN) -- Environmental groups challenging EPA's repeal of the 2015 waters of the United States, or WOTUS, rule have asked a federal court to stay the case.

In court documents filed on Friday in the U.S. District Court for the District of South Carolina, the groups, led by the South Carolina Coastal Conservation League, said the EPA's action in finalizing a new rule recently may change their legal strategy.

"The parties have further conferred and agree that the finalization of a revised definition of 'waters of the United States' may affect the issues and arguments at play in this litigation and other related legal challenges regarding the regulatory definition of 'waters of the United States,'" the groups said in their filing.

"The parties agree that holding this case in abeyance for 75 days would allow the parties time to evaluate the new rule."

The EPA and the U.S. Army Corps of Engineers signed a final new rule on Jan. 23, 2020, which is set to take effect in 60 days from that date.

The EPA and the U.S. Army Corps of Engineers finalized the repeal of the previous Obama-era 2015 WOTUS rule, which agriculture and other industry groups and states had fought in court for years, on Oct. 22, 2019. The repeal rule reverted regulations to the 1986 version of WOTUS while the EPA continued to rewrite the definition. The 2015 rule was opposed by critics as an example of gross federal overreach, yet the 1986 rule also had its share of concerns.

Following the repeal of the 2015 WOTUS rule, environmental and conservation groups filed a lawsuit on Oct. 23, 2019. Joining the South Carolina Coastal Conservation League in filing the lawsuit was the Natural Resources Defense Council, National Wildlife Federation and others.

Agriculture interests said at the time that the lawsuit was problematic because, if the court ruled the agency should have promulgated the 1986 rule again instead of just reverting back to it, the 2015 rule could have gone back into effect until EPA completed the rewrite of the new rule.

A number of agriculture and other interest groups led by the American Farm Bureau Federation filed a motion to intervene in the case.

The lawsuit in South Carolina claims the federal agencies violated the Administrative Procedure Act in promulgating the repeal rule and merely reverting back to the 1986 rule instead of re-introducing it for public comment.

The groups argue the 2015 WOTUS rule fixed a number of issues with the 1986 rule. That includes protecting waters that are not navigable in fact through the so-called "significant nexus" test put forward by Supreme Court Justice Anthony Kennedy. That suggested the Clean Water Act protects smaller tributaries if they have some connection to larger navigable waters.

A second lawsuit was filed by the New Mexico Cattle Growers Association in the U.S. District Court for the District of New Mexico, seeking protection from the 1986 WOTUS rule. That lawsuit continues.

The lawsuit raises a number of jurisdictional concerns about the scope of the 1986 rule. The cattle group said the rule categorically regulates "all tributaries," broadly includes all wetlands defined to be adjacent to any tributary and regulates all interstate waters, "regardless of navigability or connection to navigable-in-fact waters."

The lawsuit said such waters include isolated waters or waters that the "Supreme Court determined would have no connection or effect on navigable-in-fact waters."

The New Mexico Cattle Growers Association argued in its lawsuit that the 1986 rule is arbitrary and capricious and "undermines state power" to regulate waters.

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

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Todd Neeley

Todd Neeley
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