Waters of the United States - WOTUS - is Back in Court

On November 11th, twenty-four states filed an Amended Complaint in federal court over the Environmental Protection Agency’s (EPA) Waters of the United States (WOTUS) rule. This is happening on the heels of the Supreme Court decision Sackett vs. the EPA and subsequent rulemaking by the current administration.

Attorneys for the states and industry groups have voiced strong criticism against the new rule. The complaint asserts that the current administration’s latest revision of the Waters of the United States Rule utilizes an impractical definition conflicting with the Clean Water Act, the Constitution, and Supreme Court precedent.

The Amended Complaint states, “…the Amended Final Rule still violates the CWA, 33 U.S.C. §§ 1251-1387, the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706, and the United States Constitution. It “exce[eds] [the Agencies’] statutory jurisdiction [and] authority” under the CWA by encompassing waters with no reasonable connection to “navigable waters.” 5 U.S.C. § 706(2)(C). It is arbitrary and capricious because— among many things—it embraces vague standards with little justification and minimal consideration of costs. See 5 U.S.C. § 706(2)(A). The Agencies promulgated the Amended Final Rule in violation of multiple procedural obligations. See 5 U.S.C. § 706(2)(D). And the Amended Final Rule runs “contrary to constitutional right, power, privilege, or immunity,” by offending the Commerce Clause, Due Process Clause, and the Tenth Amendment of the U.S. Constitution. See 5 U.S.C. § 706(2)(B).”

The Amended Complaint further stated that if the Amended Final Rule published by the current administration is left in place, “then ranchers, farmers, miners, homebuilders, and other landowners across the country will struggle to undertake even the simplest of activities on their own property without fear of drawing the ire of the federal government.”

The Amended Complaint also asks the court to issue a final order that the current administration’s Amended Final Rule is unlawful and to vacate it.

The following states are named in the amended complaint: Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming. Agricultural associations weighed in as well, including the American Farm Bureau Federation, National Cattlemen's Beef Association, National Corn Growers Association, and other national and local trade groups.

Links

Article in Agripulse HERE

Article in Meatingplace HERE

Article in National Law Review HERE