If the “waters of the United States” rule became law, it would “freeze up” the use of farmland as landowners try to determine “whether every minor drainage ditch, dry arroyo, and nearby puddle is covered by the Clean Water Act,” farm groups said in an amicus brief filed in federal court in North Dakota.
The American Farm Bureau Federation filed the brief along with 14 other industry groups, including the National Cattlemen’s Beef Association and its associated Public Lands Council, National Corn Growers Association, National Pork Producers Council, and U.S. Poultry & Egg Association.
They joined 14 states asking the court to schedule oral arguments as soon as “practicable” and then declare the 2015 WOTUS rule unlawful. A preliminary injunction issued by the North Dakota court in 2015 remains in place, preventing implementation of WOTUS in 13 states – Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming. (Iowa is separately supporting the states’ request as an intervenor.)
EPA and the Army Corps of Engineers have delayed implementation of the rule until 2020, an action that itself is being challenged in separate lawsuits from other states and environmental groups.
In the North Dakota case, EPA and the Army Corps of Engineers, as well as the Sierra Club, which has intervened to defend the rule, must file their briefs by July 16. The court previously rejected the government’s attempt to stop the case from being reopened. It had been stayed while the question of where WOTUS cases should be heard was considered by the Supreme Court.
The high court decided that challenges to WOTUS belong in the district courts, not the federal appeals courts, and Chief U.S. District Judge for North Dakota Daniel Hovland ruled May 1 that the case could proceed.
In their brief, the ag groups said that together they “grow virtually every agricultural commodity produced in the United States, including significant portions of the U.S. milk, corn, sugar, egg, pork, and beef supply. Agriculture and agriculture-related industries contributed $775.8 billion to the U.S. gross domestic product in 2012, a 4.8 percent share.”
The groups reiterated their argument for why the rule should be invalidated: It’s “procedurally defective” because the agencies did not properly consider comments and engaged in a “propaganda” campaign aimed at critics; it “reads the term navigable out of the (Clean Water Act) and asserts jurisdiction over remote and isolated features that bear no meaningful relationship to ‘navigable waters’”; and it is unconstitutional, both because it “disrespects the federalist scheme inherent in the CWA” and because it fails to clearly define what is prohibited, thus giving government agents “unchecked discretion to enforce the law in arbitrary and discriminatory ways.”
The brief was filed Friday, the same day that a federal judge in Georgia is expected to rule on a request by 11 states, led by the state of Georgia, to issue a preliminary injunction that would prevent EPA and the Corps from implementing the 2015 rule.
The states in that case, which also include West Virginia and Indiana, fear that if the “applicability rule” delaying WOTUS until 2020 is invalidated, the WOTUS rule would immediately go into effect.
The Farm Bureau and most of the other ag groups also are plaintiffs in another case in Texas, where they are seeking a nationwide injunction of WOTUS. That case has been briefed and argued, but the judge has not issued a decision.
For more news, go to www.Agri-Pulse.com
