Ag groups file suit on Waters of the U.S. rule

Ag groups file suit on Waters of the U.S. rule

Groups' complaint says that EPA failed to consider public comments during re-write of Waters of the United States regulation

Thirteen farm groups on Thursday filed a lawsuit asking a federal court to vacate the U.S. EPA and Army Corps of Engineers Waters of the U.S. regulation that they say will bring "a staggering range" of land and water under federal jurisdiction and adversely affect numerous agricultural and business activities.

Related: EPA releases final Waters of the U.S. rule

The final WOTUS rule was issued May 27, 2015, in attempt to clarify the agencies' authority under the Clean Water Act.

Currently, that jurisdiction – based on several U.S. Supreme Court decisions – includes "navigable" waters and waters with a significant hydrologic connection to navigable waters.

Groups complaint says that EPA failed to consider public comments during re-write of Waters of the United States regulation

Groups say the WOTUS rule would broaden that to include upstream waters and intermittent and ephemeral streams such as the kind farmers use for drainage and irrigation. It also would encompass lands adjacent to such waters.

In their suit filed in the U.S. District Court for the Southern District of Texas against EPA and the Corps of Engineers, the agricultural and business groups said the final rule "bears no connection" to the CWA and violates provisions of the U.S. Constitution.

They also allege that in writing the rule the agencies misinterpreted the Supreme Court's decisions on CWA jurisdiction and subverted the notice-and-comment process by failing to seek public comments on scientific reports used to write the regulation and on major revisions of the proposed rule, conducting an inadequate economic analysis and engaging in an advocacy campaign during the comment period.

Similar lawsuits have been filed by the attorneys general of 27 states.

"The final rule is vague and fails to let regulated parties know when their conduct violates the law," said NPPC President Dr. Ron Prestage. "We're asking the court to find the rule arbitrary, capricious, an abuse of discretion and not in accordance with law; and to find that it's unlawful because it's contrary to constitutional rights and powers, inconsistent with the agencies' statutory authority under the CWA and was promulgated without following procedures required by law. The bottom line is we want the court to set aside the rule.

Related: NCBA warns of lawsuit over Waters of the U.S.

"We all want clean water," Prestage said, "but this rule isn't about clean water, it's about EPA and the Corps taking over private property, growing the size of government and micromanaging hundreds of farming and business activities."

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Philip Ellis, president of the National Cattlemen's Beef Association, which is also backing the suit, commented: "The WOTUS rule remains a top priority for our producers and for all landowners nationwide," said. "While cattlemen have long asked for greater clarity around the Clean Water Act, this rule does the opposite, rendering jurisdictional determinations so vague and subjective that our members cannot possibly make a determination as to what basic ranching activities will subject them to criminal and civil penalties under the Clean Water Act. We remain committed to working with the administration, Congress and through the courts to stop this rule."

The Senate Environment and Public Works Committee in June approved a bill to rewrite the WOTUS rule, while the House in May also approved a WOTUS withdraw bill with a 261-155 vote.

NPPC is backing these bills, which would require EPA and the Corps of Engineers to withdraw the WOTUS rule and to work with affected parties, including farmers, on a new regulation.

The American Farm Bureau Federation, American Petroleum Institute, American Road and Transportation Builders, Leading Builders of America, National Alliance of Forest Owners, National Association of Home Builders, National Association of Manufacturers, National Corn Growers Association, National Mining Association, and Public Lands Council also are supporters.


Catch a legal perspective on the rule with ag attorney Gary Baise's "Inside EPA's Waters of the U.S. Ruling" series:
Part one: What you should know about the EPA ruling
Part two: Understanding 'significant nexus'
Part three: Does this impact private property rights?
Part four: The government's boundless appetite for regulation


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