Court Stay Allows Water Rule Review

OMAHA (DTN) -- A federal court in South Carolina granted a 60-day stay in an ongoing lawsuit challenging the Trump administration's Navigable Waters Protection Rule.

The EPA and the U.S. Army Corps of Engineers asked for the stay from the U.S. District Court for the District of South Carolina to allow more time to review the rule.

The lawsuit, brought by the South Carolina Coastal Conservation League in July 2020, https://www.dtnpf.com/…, would have the effect of "dramatically reducing the universe of waters protected" by the Clean Water Act.

In the motion granted by the court on Monday, the agencies said the additional time will allow for continued review of the rule, which is largely supported by agriculture groups.

Also playing into the court's decision is the pending Senate vote on EPA Administrator nominee Michael Regan, https://www.dtnpf.com/…, who told members of a Senate committee he intends to engage the agriculture community on the rule.

The Senate has yet to set a date for the vote on Regan's nomination.

In New Mexico, a lawsuit filed by the New Mexico Cattle Growers Association also has been stayed, https://www.dtnpf.com/…, by the U.S. District Court for the District of New Mexico.

The federal government said in its motion granted this week in South Carolina that the additional 60 days allows for more time for Regan to be confirmed and to review the rule.

"Here, though the agencies were hopeful that they would have an understanding as to how the new administration plans to approach the NWPR within the parties' first 30-day continuance," the government said in its motion, "it has become apparent that the review will necessarily take some additional time. Perhaps most importantly, the EPA administrator-designate, Michael Regan, has not yet been confirmed by the Senate. Indeed, at the committee hearing on Mr. Regan's confirmation, senators repeatedly raised questions about the NWPR, demonstrating the importance of this issue to the administration and the incoming administrator."

The government said that, because the water rule is 'significant,' the agencies' new leadership "should be afforded this opportunity to consider (and potentially reconsider) their approach to the NWPR before the court considers the merits of the pending summary judgment motions. It is at least possible that the agencies' review of the NWPR may ultimately lead to a significant modification or withdrawal of the rule."

While serving as secretary of the North Carolina Department of Environmental Quality, Regan objected to the Trump administration's Navigable Waters Protection Rule.

Regan was asked during a Feb. 3 hearing before the Senate Committee on Environment and Public Works whether he supports a new WOTUS rule similar to the 2015 rule agriculture and other industries fought in court.

"There are a lot of lessons learned, pragmatic experiences or pragmatic solutions that we've learned from experiences," Regan said.

"I spent a lot of time with a lot of small farmers. I spent a lot of time with a lot of environmental groups, and what I would say is I'm looking forward to convening multiple stakeholder groups on how we chart a path forward. I don't believe that we have to sacrifice water quality at the expense of making sure that farmers, especially small farmers, have a fighting chance in this economy. I believe that you can do both."

Regan said he understands it is "difficult for any kind of federal regulation to truly address the unique agricultural needs" of different regions.

"So, I want a rule that moves forward, that's not overly burdensome, but gives the states the flexibility to protect water quality and protect the local agricultural economy," he said.

The navigable waters definition in the Clean Water Act has been the subject of numerous lawsuits.

The 2015 waters of the United States, or WOTUS, rule in particular drew attention from states attorneys general, agriculture and other industry groups that challenged the rule based on concerns it expanded the federal government's reach onto private property, https://www.dtnpf.com/….

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.

Even prior to the completion of the WOTUS rule, farmers and ranchers faced uncertainty as to which waters were considered jurisdictional. So far, neither Congress, nor the EPA, has been able to make the law more understandable.

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

Follow him on Twitter @toddneeleyDTN

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