The Environmental Protection Agency (EPA) rolled out April 21 its final update to its new rules for regulating waterways. Although it is a major improvement from the Obama Administration regulations issued in 2015, there are still some concerns in how the federal government could claim to have authority over private property as it relates to farmers and ranchers and further legal challenges ahead. The final rule will become effective on June 22, 2020, assuming that the courts don’t step in.
Scott Yager, National Cattlemen’s Beef Assn. (NCBA) chief environmental counsel, said the rule itself is a “big step in the right direction.” NCBA, along with other major agricultural groups, have found themselves supportive of the Trump Administration’s rewrite, and unlike challenging EPA and the Army Corps of Engineers in the courts as they did the last time around, they likely will find themselves offering legal support to the latest attempt to rewrite the federal jurisdiction of waters of the U.S. (WOTUS).
Yager said regulatory certainty remains the number-one policy priority for farm groups and to make sure there is an appropriate level of federal oversight without overreaching. Clear exclusions specifically pertinent to agriculture include prior converted cropland, stock and farm ponds and a blanket exclusion for ephemeral streams that carry water only after a precipitation event.
The New Mexico Cattle Growers’ Assn. (NMCGA) challenged certain provisions of EPA’s new Navigable Waters Protection Rule. Tony Francois, a senior attorney at Pacific Legal Foundation who represents the cattle growers, explained that the new rules let federal agencies control ponds, wetlands and other property far removed from navigable waterways.
“This new rule makes a lot of progress, but there’s more to be made,” Francois said. “It important to balance clarity with legality. Clarity is good, but it should be clarity within legal limits, not just exceeding legal limits just for the sake of clarity.”
“The Justice Department has already said that the new rule is unlikely to help people like Jack LaPant, a California farmer who is being prosecuted for growing wheat more than a decade ago,” Francois said. “If he can be sued for normal farming and face millions of dollars in damages, then no one is safe.”
Francois said the new rule will continue to regulate intermittent tributaries, and this could include any drainage that flows in as little as a garden hose's worth of water on private property. Another troubling inclusion in the rule is certain types of wetlands that he said are outside the scope of the Clean Water Act based on Supreme Court precedent.
The NMCGA challenge, and similar challenges by Oregon and Washington cattle grower groups, does not seek to vacate that rule or enjoin the entire rule to prevent it from going into effect, Francois said, but, rather, enjoins specific provisions. “We think this is a win-win,” he added. Agencies can continue to protect water quality, and private property owners are protected by preventing the federal government from regulating the features they don’t have authority to regulate. Francois would like to see a judicial decision on a preliminary injunction on the provisions before June 22.
Meanwhile, environmental activists have also challenged the rule in both New York and South Carolina courts -- challenging the appeal of the 2015 rule and adding to that lawsuit to incorporate the replacement rule.
“The future has yet to hold the turns and twists that could happen in court,” Yager said. “An issue like this [that is] so complicated and has been to the Supreme Court three times, it’s the best you could thread the needle to produce a rule that provides regulatory relief and is defensible in court. I’m happy to where we’ve gotten. Now, we’re going to turn to litigation to shore up defense of this rule as much as we can moving forward.”
Yager said realistically it could remain tied up in the courts for anywhere from three to five years before it returns to the Supreme Court. “We’re hopeful the rule will survive legal challenges, especially when it ends up at the Supreme Court.” He said having the conservative property right justices currently on the court also works in favor of defending agricultural interests in the current rule.