All Posts from April 14, 2023

Federal Judge Blocks WOTUS Rule in 24 States

A federal judge in North Dakota on April 12 issued a temporary injunction blocking the US Environmental Protection Agency (EPA) and Army Corps of Engineers from implementing or enforcing the new “Waters of the United States” (WOTUS) rule in 24 states.

The ruling comes less than a week after President Joe Biden vetoed a US Congressional resolution that would have overturned the WOTUS rule (GM April 7, p. 1), which came into effect on March 20 after being announced in late 2022 (GM Jan. 6, p. 1).

The states include West Virginia, North Dakota, Georgia, Iowa, Alabama, Alaska, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, and Wyoming. The injunction follows a federal court order in March blocking the rule in Texas and Idaho.

The 24 states, led by West Virginia, have “persuasively shown that the new 2023 rule poses a threat to their sovereign rights and amounts to irreparable harm,” Judge Daniel L. Hovland of the US District Court for the District of North Dakota ruled on April 12. “The states involved in this litigation will expend unrecoverable resources complying with a rule unlikely to withstand judicial scrutiny,” he said.

With the new WOTUS rule now barred in more than half the country, EPA issued a statement saying it and the Corps are reviewing the federal judge’s decision and their options. EPA noted, however, that the rule still stands in the states not included in the injunction, and it said it continues to believe the rule is “the best” interpretation of the Clean Water Act.

“The agencies continue to believe the rule, which is informed by the text of the relevant provisions of the Clean Water Act and the statute as a whole, as well as the scientific record, relevant Supreme Court case law, input from public comment, and the agencies’ experience and technical expertise after more than 45 years of implementing the longstanding pre-2015 regulations defining waters of the United States, is the best interpretation of the Clean Water Act,” EPA said in the statement.

“The agencies remain committed to establishing and implementing a durable definition of ‘waters of the United States’ informed by diverse perspectives,” the EPA statement continued. “Our goal is to protect public health, the environment, and downstream communities while supporting economic opportunity, agriculture, and industries that depend on clean water.”

The new WOTUS rule has been criticized by numerous industry trade groups, including The Fertilizer Institute (TFI), as being confusing and overreaching. In January a coalition of 17 trade groups filed a lawsuit against EPA and the Corps challenging the rule (GM Jan. 27, p. 1), followed in February by a similar lawsuit lodged by the attorneys general from 23 states (GM Feb. 24, p. 1).

“Once again, the courts have affirmed that the Biden administration’s WOTUS rule is overreaching and harmful to America’s beef farmers and ranchers,” said Todd Wilkinson, President of the National Cattlemen’s Beef Association in an April 12 statement. “Cattle producers in 26 states now have some additional certainty while this rule is being litigated, and we are optimistic that the Supreme Court will provide nationwide clarity on the federal government’s proper jurisdiction over water.”

Environmental Groups Sue EPA for CWA Violations; Fertilizer Listed Among Polluting Industries

A coalition of environmental groups sued the US Environmental Protection Agency (EPA) on April 11 for failing to set limits on chemicals like cyanide, benzene, mercury, and chlorides in wastewater emitted by oil refineries and plants that produce chemicals, fertilizer, plastics, pesticides, and nonferrous metals.

The lawsuit alleges that EPA has violated the Clean Water Act (CWA) by failing to set limits on the amount of pollution that these industries can discharge into waterways. The lawsuit also claims that EPA has failed to update effluent limitation guidelines (ELGs) that were set in the mid-1980s for oil refineries, plastics manufacturers, and fertilizer plants.

According to a statement from the Environmental Integrity Project (EIP), which is coordinating the legal action on behalf of 13 environmental groups, a total of 59 fertilizer manufacturing plants discharged nearly 90 million pounds of pollution into waterways in 2019, including 21 nitrogen plants that discharged 7.7 million pounds of total nitrogen.

“The EPA has set no limits on several fertilizer plant pollutants, including selenium, total chromium, zinc, iron, nickel, cadmium, cyanide, and lead,” the statement claims. “The current effluent guidelines for fertilizer factories have not been updated since 1986.”

The lawsuit was filed in the U.S. Court of Appeals for the 9th Circuit in San Francisco by the EIP, the Center for Biological Diversity, Clean Water Action, Waterkeeper Alliance, Food & Water Watch, Environment America, Bayou City Waterkeeper, Black Warrior Riverkeeper, Healthy Gulf, San Antonio Bay Estuarine Waterkeeper, San Francisco Baykeeper, the Surfrider Foundation, and Tennessee Riverkeeper.

“No one should get a free pass to pollute. It’s completely unacceptable that EPA has, for decades, ignored the law and failed to require modern wastewater pollution controls for oil refineries and petrochemical and plastics plants,” said Jen Duggan, EIP Deputy Director. “We expect EPA to do its job and protect America’s waterways and public health as required by the Clean Water Act.”