Producer and land use groups filed a complaint in U.S. District Court for the Southern District of Texas against the Environmental Protection Agency and Army Corps of Engineers over their “waters of the United States” final rule.
The groups asked the federal court to vacate the controversial new rule redefining the scope of federal jurisdiction under the Clean Water Act. The complaint, filed in federal district court in Texas, claims the new rule grants EPA and the U.S. Army Corps of Engineers broad control over land use far beyond what Congress authorized in the Clean Water Act. The lawsuit also claims vagueness and over-breadth of the rule violate the U.S. Constitution. The groups also challenged EPA’s aggressive grassroots advocacy campaign during the comment period, which reflected a closed mind to concerns expressed by farmers and others.
They also allege that in writing the rule the agencies misinterpreted the Supreme Court’s decisions on CWA jurisdiction and subverted the notice-and-comment process by failing to seek public comments on scientific reports used to write the regulation and on major revisions of the proposed rule, conducting an inadequate economic analysis and engaging in an advocacy campaign during the comment period.
Co-plaintiffs include the American Farm Bureau Federation, American Petroleum Institute, American Road and Transportation Builders, Leading Builders of America, National Alliance of Forest Owners, National Assn. of Home Builders, National Assn. of Manufacturers, National Cattlemen’s Beef Assn., National Corn Growers Assn., National Mining Assn., National Pork Producers Council and Public Lands Council and Texas Farm Bureau.
NPPC president Dr. Ron Prestage, a veterinarian and pork producer from Camden, S.C., said, “We’re asking the court to find the rule arbitrary, capricious, an abuse of discretion and not in accordance with law; and to find that it’s unlawful because it’s contrary to constitutional rights and powers, inconsistent with the agencies’ statutory authority under the CWA and was promulgated without following procedures required by law. The bottom line is we want the court to set aside the rule.”
Philip Ellis, NCBA president and Chugwater, Wyo., cattleman, said, “While cattlemen have long asked for greater clarity around the Clean Water Act, this rule does the opposite, rendering jurisdictional determinations so vague and subjective that our members cannot possibly make a determination as to what basic ranching activities will subject them to criminal and civil penalties under the Clean Water Act.
“Litigation is a last resort to exercise our rights against regulation, but producers have determined that this is a necessary step,” said Brenda Richards, PLC president and Idaho rancher.
Four similar suits were filed by officials representing 27 states, all within two days of the rule’s publication on June 29. A group of nine states—West Virginia, Georgia, Alabama, Florida, Kansas, Kentucky, South Carolina, Utah and Wisconsin—has asked a federal district court in Georgia for a preliminary injunction to stop implementation of the rule while the lawsuit is resolved. Ohio and Michigan have a separate suit in Ohio also seeking preliminary relief.
AFBF General Counsel Ellen Steen said litigation is not a quick or perfect fix. “It is long, cumbersome and expensive, and it leaves farmers and others facing immediate harm and uncertainty under this rule.”
While states and commodity groups have turned to the courts to slow implementation of the rule which is set to go into effect 60 days after the publication which occurred June 29, a bill currently before the Senate, if passed, would require EPA and the Corps to abandon the rule and conduct a new rulemaking.
“Lawsuit or no lawsuit, we need Congress to act,” AFBF President Bob Stallman said. “We need legislation that requires an honest rulemaking from EPA. EPA water regulations must protect water quality without bulldozing the rights of farmers and others whose livelihoods depend on their ability to work the land.”