Water of the U.S. Rule on Hold in 24 States


A federal district court in Georgia slapped a preliminary injunction on the 2015 waters of the United States, or WOTUS, rule on Friday, suspending the implementation of the rule in 11 states.

The order for injunction handed down by the U.S. District Court for the Southern District of Georgia, is the latest action in a complicated series of court cases challenging the WOTUS rule.

The WOTUS rule finalized by President Barack Obama's administration in 2015 sought to expand EPA and U.S. Army Corps of Engineers authority of water across the country, allowing them to stop or require federal permits for any activity that would disturb the waterway. The rule changed the definition of so-called navigable waters, and farmers and ranchers were concerned that even the smallest pond or ditch could be declared a federal waterway. Agriculture and other industry groups, along with many states, filed legal challenges against the rule claiming it violated the federal constitution.

After the U.S. Supreme Court ruled legal challenges to the rule belong at the district court level, district court cases previously on hold have resumed. A national stay on the rule expired when the Supreme Court rendered its decision.

The Georgia court on Friday put the rule on hold in Georgia, Alabama, Florida, Indiana, Kansas, North Carolina, South Carolina, Utah, West Virginia, Wisconsin and Kentucky — the 11 states that filed the original lawsuit in Georgia in June 2015. The rule also is on hold in South Dakota, Missouri, Alaska, North Dakota, New Mexico, Idaho, Arizona, Nebraska, Montana, Arkansas, Nevada, Colorado and Wyoming as part of an ongoing similar case in North Dakota.

The EPA approved a final rule setting back the effective date of the WOTUS rule to February 2020, to allow the agency to conduct a rewrite. That delay is being challenged in court by a number of states and environmental groups.

American Farm Bureau Federation President Zippy Duvall said in a statement to DTN the ruling in Georgia was “a clear validation of many concerns” that farm bureau has expressed about the rule.

“We need to continue to work diligently to support the Environmental Protection Agency's efforts to formally repeal the rule,” he said. “The illegal rule is overbroad, vague and confusing, and it goes far beyond the intent of Congress when it passed the Clean Water Act. This overreach and confusion has created a situation where farmers and ranchers would need to hire a team of lawyers and consultants to perform many ordinary farming practices on their land.”

The district court in Georgia said the 11 states have “clearly met the burden of persuasion” on all of the four factors entitling them to a preliminary injunction.

“Three of the four factors (substantial likelihood of success on the merits, balance of harms, and public interest) weigh overwhelmingly in plaintiffs' favor,” the court ruled.

“Given that the states filed this suit 36 months ago, and still no decision on the merits has been possible, it is quite possible that Feb. 6, 2020, will occur before a decision on the merits can be rendered. Therefore, the court finds that the occurrence of actual irreparable harm in 19 months is sufficiently imminent to weigh this factor in favor of the states.”

The preliminary injunctions in place in the 24 states, now allow the states to pursue their legal challenges on the merits of the lawsuits originally filed.

On Friday, a number of agriculture and industry groups led by the American Farm Bureau Federation filed an amicus brief in support of motions for summary judgement. Those groups include the National Pork Producers Council, the National Cattlemen's Beef Association, the American Petroleum Institute, National Corn Growers Association, and the U.S. Poultry and Egg Association, as well as other building industry groups.

In the past week, 13 states that still were involved in the pending case in North Dakota filed a motion for summary judgement in an attempt to close the books on that lawsuit. Iowa Republican Gov. Kim Reynolds also filed a motion for summary judgement to end the case.

The EPA faces additional lawsuits for delaying the 2015 rule. Attorneys general of 10 states and the District of Columbia sued EPA in February, alleging the agency's final rule suspending the 2015 rule is unlawful. New York's attorney general was joined by attorneys general from California, Connecticut, Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, Vermont, Washington and the District of Columbia. The Natural Resources Defense Council also filed a similar lawsuit.

Source: DTN

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