Ag Policy Blog

Enviros sue EPA on WOTUS

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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As if pressure from agriculture, industry, states and others suing the U.S. Environmental Protection Agency to stop the waters of the United States rule wasn't enough, a number of environmental groups filed suit Friday in a federal court in California, hitting the rule from a different angle but based on many of the same reasons argued so far by many other plaintiffs in courts across the country.

The Waterkeepers Alliance Inc., is leading a number of environmental groups in asking the U.S. District Court for the Northern District of California to issue an injunction to stop the rule, but for a different reason.

The group claims in this latest lawsuit EPA made changes to the rule that will leave some waters unprotected. The lawsuit cites internal U.S. Army Corps of Engineers memos that were made public in the past couple of weeks, in arguing to the court that EPA didn't follow the Administrative Procedures Act. Ag groups and others have alleged the same violation of the APA.

"Plaintiffs support those portions of the final rule that maintain and clarify longstanding protections of tributary streams, wetlands, and other waters whose regulatory status has been thrown into doubt by a series of recent Supreme Court decisions on the scope of Clean Water Act jurisdiction; for this reason, plaintiffs do not seek vacatur of the final rule in its entirety," the lawsuit filed in California today states.

"However, a number of key provisions of the rule are legally or scientifically indefensible, and must therefore be remanded to the agencies. These flawed provisions impermissibly abandon waters that must be protected under the Clean Water Act as a matter of law; arbitrarily deviate from the best available science; or were promulgated without compliance with the agencies' notice and comment obligations.

"Many of the defects of the final rule resulted from changes made by the agencies in the final weeks before promulgation, well after members of the public and even the Corps' most experienced and knowledgeable staff had an opportunity to participate in the rulemaking process.

"In the words of one senior Corps attorney, the final rule 'contains several serious flaws' and abandoned 'sound principles of science and law' that existed in the agencies' proposed Clean Water Rule," the lawsuit said citing a memo from Lance Wood, assistant chief counsel, environmental law and regulatory programs, U.S. Army Corps of Engineers, to Maj. Gen. John W. Peabody, deputy commanding general for civil and emergency operations, U.S. Army Corps of Engineers, on April 24, 2015.

The lawsuit goes on, "as a result, certain portions of the final rule are 'a textbook example of rulemaking that cannot withstand judicial review.' By this complaint plaintiffs allege that the agencies violated the Administrative Procedure Act, and the National Environmental Policy Act, when they promulgated the final rule."

The environmental groups are asking the court to hold specific parts of the new law unlawful and "setting them aside because they are 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'"

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