The U.S. Supreme Court (SCOTUS) has agreed to consider whether jurisdiction rests with the federal district or appellate courts over a lawsuit brought by dozens of agricultural organizations, businesses, and municipalities, challenging the EPA’s Clean Water Act rule, also known as Waters of the U.S., or WOTUS.
WOTUS, which took effect Aug. 28, 2015, was proposed in April 2014 by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers to clarify the agencies’ authority over various waters. That jurisdiction – based on several U.S. Supreme Court decisions – had included “navigable” waters and waters with a significant hydrologic connection to navigable waters. But the regulation broadened that 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.
The U.S. Court of Appeals for the 6th Circuit in Cincinnati in October 2015 issued a stay on implementation of the regulation pending disposition of numerous lawsuits filed in U.S. district courts around the country. Last year, however, the 6th Circuit consolidated the suits under its jurisdiction. In November several ag organizations submitted briefs to the appellate court, arguing that the agencies promulgated the WOTUS rule without following federal rulemaking procedures, the regulation is arbitrary and capricious or contrary to law, and the agencies exceeded their authority under the Clean Water Act and the U.S. Constitution. With just days left in the administration, the Obama EPA filed its brief in defense of the rule with the 6th Circuit.
“The WOTUS rule is vague, overbroad, and fails to let regulated parties know when their conduct violates the law,” said NPPC President John Weber, a pork producer from Dysart, Iowa. “We all want clean water, but this regulation is a big land grab that promotes growth of government and allows activists to extort and micromanage all kinds of farming and business activities.”
In their brief to the appellate court, NPPC and the other groups said EPA and the Corps of Engineers failed to reopen the public comment period after making fundamental changes to the proposed rule and withheld until after the comment period closed the scientific report on which the rule rested.
“The Supreme Court’s decision to hear our appeal is a victory for America’s cattle producers and all private property owners across the country,” said Scott Yager, National Cattlemen’s Beef Association environmental counsel. “It shows that the Court has a continued interest in private property rights and we look forward to oral arguments this spring.”