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Preliminary injunction sought against WOTUS rule

As lawsuits pick up following recent Supreme Court decision, agricultural groups seek injunction to provide regulatory certainty.

A diverse coalition of agricultural and business groups late Wednesday filed a request in federal court – in the case of American Farm Bureau Federation, et al. vs. the U.S. Environmental Protection Agency – for a nationwide preliminary injunction against enforcement of the Obama Administration’s waters of the U.S. (WOTUS) rule.

The Clean Water Act regulation issued in 2015 by EPA gave the agency broad jurisdiction over U.S. waters to include, among other water bodies, upstream waters and intermittent and ephemeral streams such as the kind farmers use for drainage and irrigation. It also covered lands adjacent to such waters.

In October 2015, a U.S. court of appeals blocked the rule’s implementation, but a recent U.S. Supreme Court decision that lawsuits against the WOTUS rule should be heard at the federal district court level technically lifted that stay. In 2015, agriculture and business groups and the attorneys general from numerous states filed lawsuits against the regulation in U.S. district courts around the country.

Last year, EPA announced that it would repeal and replace the WOTUS rule. The agency recently proposed to amend the existing regulation to delay the applicability date for two years. It is expected to propose a regulation soon to rescind the rule and then promulgate a new rule based on input from regulated parties, including farmers.

Earlier this week, 12 attorneys general from coastal states filed their own lawsuit seeking to put the 2015 law proposed by the Obama Administration back in place.

In asking the U.S. District Court for the Southern District of Texas for a stay of the WOTUS rule, the National Pork Producers Council and the other organizations argue that EPA’s repeal-and-replace process likely will be subjected to legal challenges and that “a nationwide preliminary injunction is imperative.

“The risk that the WOTUS rule might come in and out of effect repeatedly over the coming years as new regulations are promulgated and new lawsuits are brought represents a manifest irreparable harm not only to the states … but also to private landowners and business owners,” the coalition said.

In addition to a lack of regulatory certainty, the organizations contend that if the current WOTUS rule were to go into effect, it would subject farmers and business owners to citizen enforcement suits, which, if successful, carry heavy civil and potentially criminal penalties.

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