All Posts from January 27, 2023

Trade Groups Sue Over New WOTUS Definition

A coalition of 17 trade groups filed a lawsuit against the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers on Jan. 18 challenging the agencies’ new Waters of the United States (WOTUS) definition.

Officially announced on Dec. 30 (GM Jan. 6, p. 1), the new rule claims to restore protections that were in place prior to 2015 under the Clean Water Act (CWA) but with “updates to reflect existing Supreme Court decisions, the latest science, and the agencies’ technical expertise.” The rule was published in the Federal Register on Jan. 18.

According to the lawsuit, however, the rule “adopts an unworkable definition of WOTUS that conflicts with the CWA, the Constitution, and Supreme Court precedent.” Chief among a long list of criticisms is the allegation that the rule relies on a vague “significant nexus” standard that potentially brings a wide range of waters and land under CWA jurisdiction.

“Instead of providing much-needed clarity to the regulated community…all the Rule makes clear is that the agencies are determined to exert CWA jurisdiction over a staggering range of dry land and water features – whether large or small; permanent, intermittent, or ephemeral; flowing or stagnant; natural or manmade; interstate or intrastate; and no matter how remote from or lacking in a physical connection to actual navigable waters,” the lawsuit claims.

EPA tried to clarify “significant nexus” in the new rule by adding more criteria to the test, Bloomberg Law reported, including a water body’s distance to a navigable water, the frequency and duration of water flow, and a smaller body’s contribution of flow and sediment to a navigable water body. These factors determine whether a smaller water body has a “material influence” on a larger one, and therefore falls under CWA protection, the new rule states.

EPA also included a new framework for evaluating waterway and wetlands protections, including whether the wetlands are “relatively permanent” and if the waters are “similarly situated” with other jurisdictional waters in a region or in their “catchment area.”

The lawsuit, however, claims the new rule is a “sweeping and unwieldy regulation” that “imposed impossible and unpredictable burdens” on landowners by requiring them to “assess not only their own land, but also vast expanses of land beyond their own holdings, using multiple vaguely defined connections to potentially remote features, in an effort to determine if their land is regulated under the CWA.”

“The rule purports to establish the agencies’ jurisdiction over a wide range of features that are not properly WOTUS under the CWA or under the Supreme Court’s interpretations of the Agencies’ jurisdiction,” the lawsuit states. “That includes many drainage ditches, dry desert washes, intermittent or ephemeral channels, non-navigable interstate ponds, or any feature with any of a myriad of physical or non-physical connections to navigable or interstate waters on which they are deemed by the agencies to have a ‘material influence’ using vague and undefined factors.”

The lawsuit further argues that the new WOTUS definition “strips the states of their primary authority and traditional powers over land and waters that Congress intended them to retain.” In addition, the lawsuit claims that EPA and the Corp conducted a flawed cost-benefit analysis that “dramatically” underestimates the costs imposed by the rule on landowners and small businesses.

The Supreme Court is expected to rule this year on Michael Sackett v. EPA, a pivotal WOTUS test case involving a couple that for 15 years has been prevented from building a home on their 0.63-acre property in Priest Lake, Idaho, because EPA claims part of the property contains wetlands and is therefore subject to regulation under the CWA. Oral arguments were presented in October, and the Supreme Court is expected to issue a ruling early this year.

According to a federal regulatory agenda posted on Jan. 4, EPA plans to refine the new WOTUS definition after the Supreme Court’s ruling in the case, with the final rule expected to be published in the fall.

The plaintiffs listed in the lawsuit include the American Farm Bureau Federation (AFBF); American Petroleum Institute; American Road and Transportation Builders Association; Associated General Contractors of America; Leading Builders of America; Matagorda County Farm Bureau; National Association of Home Builders; National Association of Realtors®; National Cattlemen’s Beef Association; National Corn Growers Association; National Mining Association; National Multifamily Housing Council; National Pork Producer Council; National Stone, Sand and Gravel Association; Public Lands Council; Texas Farm Bureau’ and US Poultry and Egg Association.

“Farmers and ranchers share the goal of protecting the resources we’re entrusted with. Clean water is important to all of us. Unfortunately, the new WOTUS rule once again gives the federal government sweeping authority over private lands,” said AFBF President Zippy Duvall in a Jan. 19 statement. “This isn’t what clean water regulations were intended to do. Farmers and ranchers should not have to hire a team of lawyers and consultants to determine how we can farm our land.”