Last week, DTN writer Todd Neeley reported that, “A number of agriculture and other interest groups have filed a motion to intervene in a federal lawsuit challenging EPA’s repeal of the 2015 waters of the United States, or WOTUS, rule.
“Environmental and conservation groups filed a lawsuit in the U.S. District Court for the District of South Carolina on Oct. 23, 2019. That lawsuit is led by the South Carolina Coastal Conservation League, Natural Resources Defense Council, National Wildlife Federation and others.
“The Oct. 23 lawsuit alleges the federal agencies violated the Administrative Procedure Act in promulgating the repeal rule and merely reverting back to the 1986 rule instead of re-introducing it for public comment.”
Mr. Neeley noted that, “The groups argue the 2015 WOTUS rule fixed a number of issues with the 1986 rule, which included protecting waters that are not navigable-in-fact, through the so-called ‘significant nexus‘ test put forward by Supreme Court Justice Anthony Kennedy. The rule also suggested the Clean Water Act protects smaller tributaries if they have some connection to larger navigable waters.
“On Oct. 22, 2019, the EPA and the U.S. Army Corps of Engineers finalized the repeal of the rule that agriculture and other industry groups and states had fought in court for years.
“The repeal reverts regulations to the 1986 version of WOTUS while the EPA continues to rewrite the definition. The 2015 rule was opposed by critics as an example of gross federal overreach, yet the 1986 rule also had its share of concerns.”
The DTN article added that, “What is most problematic for agriculture with this lawsuit is if the court rules the agency should have promulgated the 1986 rule again instead of just reverting back to it, the 2015 rule could go back into effect until EPA completes the rewrite of the new rule.
“In recent court action, the American Farm Bureau Federation also led a number of plaintiffs in filing a motion to intervene in the case. In that motion, the ag groups said their interests remain threatened by the latest challenges to the repeal rule.”
