Can latest water rule withstand court challenges?

Ag groups welcome water rule, but it undoubtedly will face challenges ahead.

Jacqui Fatka, Policy editor

January 23, 2020

4 Min Read
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For the last two decades, uncertainty has plagued court systems over which waters are regulated by the federal government and which aren’t. This included the 2015 "waters of the U.S." (WOTUS) rule. When an Environmental Protection Agency official was asked whether this latest version could stand up in courts, he responded that he is “very confident it can withstand a legal challenge.”

Yet, the track record so far for the federal government’s handling of the Clean Water Act is what got us to where we are today.

Many in the agriculture industry opposed the 2015 WOTUS rule because it was overly broad and had significant technical flaws, including the process EPA used to develop the rule, which violated basic due process and long-standing procedural protections. It was immediately challenged by several groups, including those in agriculture, and eventually created a patchwork of laws in states that allowed the 2015 rule to go into effect while other states put a stay on the rule.

On Aug. 21, 2019, the U.. District Court for the Southern District of Georgia remanded the rule to EPA to redraft, stating that the 2015 WOTUS rule itself violated the Clean Water Act and that the Obama Administration's procedures for enacting the WOTUS rule were in violation of the Administrative Procedures Act.

In October 2019, a coalition of environmental groups called on the U.S. District Court for the District of South Carolina to undo the Trump Administration's "arbitrary and unlawful" attempt to erase the Obama-era rule from the books.

Initial statements from the agriculture sector welcomed the new rule and its ability to properly balance federal and state oversight of water features.

National Cattlemen’s Beef Assn. president Jennifer Houston said this is the last regulatory step in a long-fought battle to repeal the 2015 rule and replace it with commonsense regulation. “The 2015 WOTUS rule was an illegal effort to assert control over private property, and we fought to have it repealed, but it also needs to be replaced, and today’s action is the last step in that process,” she said in a statement. “Today, we can rest a little easier knowing that some power has been put back in the hands of landowners.”

"We're pleased EPA has finalized a commonsense rule, the Navigable Waters Protection Rule, that works with — not against — farmers to protect our nation's waterways," said National Pork Producers Council president David Herring, a pork producer from Lillington, N.C. "The previous WOTUS rule was a dramatic government overreach and an unprecedented expansion of federal authority over private lands. Today's action balances the role of federal, state and local authorities, protects property rights and provides clarity for farmers like me while providing regulatory certainty to our farmers and businesses."

Agricultural Retailers Assn. president and chief executive officer Daren Coppock stated: “We are pleased the new rule is realistic, practical, consistent with the Clean Water Act and based on science. The rule it replaces was not realistic or practical, and it overstepped the boundaries of its authorizing statute. Under this rule, our members and their farmer customers will be able to operate with much more certainty, and the waters of the United States will continue to be protected as required by Congress, despite the doomsday predictions of some opponents.”

Expect court challenges to come: The National Wildlife Federation promised a fight before even seeing the final rules.

Collin O’Mara, president and chief executive officer of the National Wildlife Federation, said in a statement just ahead of the rule’s release: “Since the Administration refuses to protect our waters, we have no choice but to ask the courts to require the EPA to follow the law. We simply cannot afford to lose protections for half of our remaining wetlands, nor can we take any unnecessary chances with our drinking water.”

The Waterkeeper Alliance called the action "unethical and illegal" and said it "will fight this attack with every tool at our disposal."

Kelly Hunter Foster, Waterkeeper Alliance senior attorney, said the "regulation effectively guts a bipartisan law that has protected the public interest since 1972, and it does so solely to satisfy a few powerful corporate interests. We will all bear the burden of this choice with our health, our money and the destruction of the places we love. That is why we will fight to get this illegal regulation overturned.”

For now, the regulation stands to go into effect in 60 days from publication, and courts will likely have to make quick decisions on requested stays.

This ride isn't over yet.

About the Author(s)

Jacqui Fatka

Policy editor, Farm Futures

Jacqui Fatka grew up on a diversified livestock and grain farm in southwest Iowa and graduated from Iowa State University with a bachelor’s degree in journalism and mass communications, with a minor in agriculture education, in 2003. She’s been writing for agricultural audiences ever since. In college, she interned with Wallaces Farmer and cultivated her love of ag policy during an internship with the Iowa Pork Producers Association, working in Sen. Chuck Grassley’s Capitol Hill press office. In 2003, she started full time for Farm Progress companies’ state and regional publications as the e-content editor, and became Farm Futures’ policy editor in 2004. A few years later, she began covering grain and biofuels markets for the weekly newspaper Feedstuffs. As the current policy editor for Farm Progress, she covers the ongoing developments in ag policy, trade, regulations and court rulings. Fatka also serves as the interim executive secretary-treasurer for the North American Agricultural Journalists. She lives on a small acreage in central Ohio with her husband and three children.

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