First hearing set for challenge to new WOTUS rule by major private landowners

April 5 is the date of the first hearing for the many parties involved in a federal court challenge to a final rule posted this past December from EPA and the Army Corps of Engineers defining the d“waters of the United States” (WOTUS) under the 1972 Clean Water Act.

Private landowners represented by several organizations filed a 42-page complaint on Jan. 18 in U.S. District Court for the Southern District of Texas in Galveston. It says the Environmental protection Agency and the Army Corps over-stepped their authority and should have waited for a Supreme Court ruling on the issue.

The plaintiffs include:

• American Farm Bureau  Federation, 
• American Petroleum  Institute, 
• American Road And  Transportation Builders 
• Association, Associated General 
• Contractors Of America, 
• Leading  Builders Of America, 
• Matagorda  County Farm Bureau, 
• National  Association Of Home Builders
• National Association Of  Realtors 
• National Cattlemen’s Beef Association 
• National Corn  Growers Association, 
• National  Mining Association, 
• National  Multifamily Housing Council
• National Pork Producers  Council
• National Stone, Sand, And Gravel Association 
• Public Lands Council, 
• Texas Farm Bureau, 
• U.S. Poultry And Egg Association

EPA Administrator Michael S. Regn and Lt. General Scott A. Spellmon, chief of engineers, are the named defendants along with their agencies.

“Instead of providing much-needed clarity to the regulated community, however, all the Rule makes clear is that the agencies are determined to exert CWA (Clean Water Act) jurisdiction over a staggering range of dry land and water features — whether large or small; permanent, intermittent, or ephemeral; flowing or stagnant; natural or manmade; interstate or intrastate; and no matter how remote from or lacking in a physical connection to actual navigable waters, the complaint says. “Under the Rule, plaintiffs’ members will constantly be at risk that any sometimes-wet feature on their property will be deemed WOTUS by the Agencies using vague and unpredictable standards — making normal business activities in that area subject to criminal and civil penalties.”

Other points made in the Complaint include the following:

• The rule  effectively reads the term “navigable waters” out of the CWA, contrary to Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159, 172 (2001) (“SWANCC”), replacing it with a “significantly affect” standard that has no basis in the CWA; 
• It asserts improperly vague and malleable jurisdiction over features that “alone or in combination with similarly situated waters in the region” “significantly affect” navigable waters, interstate waters, or tributaries, determined by multiple indeterminate factors that provide no practical guidance to the regulated community, 88 Fed. Reg. at 3006; 
• It asserts improperly vague and malleable jurisdiction over wetlands that are “neighboring” other nebulously defined features, 88 Fed. Reg. at 3143; 
• The rule  improperly “alters the federal-state framework by permitting federal encroachment upon [the] traditional state power” over land and water (SWANCC, 531 U.S. at 173), which Congress expressly protected, see 33 U.S.C. § 1251(b) (it is “the policy of Congress” “to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, [and] plan the development and use . . . of land and water resources”); 
• It exceeds the Agencies’ delegated authority under the Commerce Clause, SWANCC, 513 U.S. at 172.

The April 5 hearing by video will be held by federal Magistrate Judge Andrew M. Edison. The court will enter a docket-control order at the video conference. The parties are allowed to begin their discovery work prior to the April 5 video hearing.

The case that EPA would not wait for is Sackett v. Environmental Protection Agency, which the Supreme Court has already held for oral arguments. The high court’s ruling is expected later this term, likely by June.

Chantell and Michael Sackett bought a building lot in a Priest Lake, ID.  subdivision 17 years ago. In preparation for building a house, they were doing some fill work when EPA ordered them to stop, saying the property involved the navigable waters of the United States and they needed a federal permit. When the agency demanded they restore the property to protect the watershed, the couple sued. 

That led to their first Supreme Court case in 2012 when they secured a unanimous decision confirming they indeed did have the right to challenge the EPA’s order in a court of law.

Their second trip to the Suprme Court, the current case, should help clarify the scope of the EPA’s regulatory powers under the CWA and whether EPA can expand the definition of “navigable waters.”

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