EPA Wetlands Rule Bogged Down in Courts

In late May, the Obama administration announced a major revision of EPA regulations that define the scope of wetlands (see "Clear as Mud: New EPA Rule Roils the Waters," Coastal Connection 6/8/15). Now, as predicted, the new rule has been challenged in Federal court — actually, in ten federal district courts and eight different federal appeals courts.

Writing in the Washington Post, attorney Jonathan H. Adler provides a thumbnail description of the legal dispute (see: "North Dakota district court blocks controversial ‘Waters of the United States’ rule"). "The suit in question was filed by 13 states (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming), which claimed, among other things, that the WOTUS rule is a threat to state sovereignty because it asserts federal jurisdiction over wetlands and waters (and even some relatively dry land) that should be subject to state government control. As a general matter (and as the Supreme Court has recognized) land-use control is generally beyond the scope of federal power. In this case, the district court concluded that the states were likely to succeed on the merits as the EPA had adopted an 'exceptionally expansive' view of its own jurisdiction under the CWA. According to the court, the WOTUS rule 'allows EPA regulation of waters that do not bear any effect on the "chemical physical, and biological integrity" of any navigable-in-fact water,' and therefore exceeds the limits on federal regulatory authority identified by the Supreme Court in [the earlier case of Rapanos v United States]."

The new rule, if enforced, would have sweeping applicability to construction projects. But its broadest impact is on farmers. That's the focus of this report in the Minneapolis Star Tribune (see: "North Dakota judge puts EPA's new clean water rule on hold," by Jim Spencer). Writes the Tribune: "Most of Minnesota’s massive agriculture industry sees the rule as a government land grab. But its equally important tourist industry depends on keeping the state’s rivers and lakes pristine in order to attract visitors."

Opponents of the rule were hoping that the North Dakota court would apply its rule to all 50 states, not just the 13 states who brought the suit. But after considering, District Judge Ralph Erickson limited his injunction to just the parties in his court, Business Insider reported (see: "Judge: Injunction against water rule limited to 13 states," by James MacPherson | AP). "Because there are competing sovereign interests and competing judicial rulings, the court declines to extend the preliminary injunction at issue beyond the entities actually before it," wrote Erickson.

Jon Devine, a staff member with the National Resources Defense Council (NRDC), which supports the new rule, has provided a list (below) of the pending lawsuits in various federal district courts (see: "Clean Water Rule Litigation Update: Let's All Just Take a Breath," by Jon Devine). Included on the list: a challenge mounted by NRDC itself, which wants to make sure the rule is tough enough.

• District of North Dakota: State of North Dakota et al. v. EPA et al.
• Northern District of West Virginia: Murray Energy Corp. v. EPA et al.
• Southern District of Ohio: State of Ohio et al. v. Army Corps of Engineers et al.
• Southern District of Texas: State of Texas et al. v. EPA et al. and American Farm Bureau Federation et al. v. EPA et al.
• Southern District of Georgia: State of Georgia et al. v. Gina McCarthy et al.
• Northern District of Oklahoma: Chamber of Commerce of the United States of America et al. v. EPA et al. and State of Oklahoma v. EPA et al.
• Northern District of Georgia: Southeastern Legal Foundation, Inc., et al. v. EPA et al.
• District of Minnesota: Washington Cattlemen's Association et al. v. EPA et al.
• Western District of Washington: Puget Soundkeeper Alliance et al. v. Gina McCarthy et al.
• District for the District of Columbia: Natural Resources Defense Council, Inc. et al. v. EPA et al.

Just how sweeping is the expansion of scope envisioned by the rule? According to some opponents, the rule would extend EPA's reach almost everywhere. The American Farm Bureau Federation posted maps on its website (see: "Farm Bureau: Maps Show Massive Increase in EPA Authority, Regulatory Uncertainty for Everyone Else") that the organization says "show the dramatic expansion of EPA's regulatory reach, stretching across wide swaths of land in Pennsylvania, Virginia and Montana. In Pennsylvania, for example, 99 percent of the state's total acreage is subject to EPA scrutiny. Landowners have no reliable way to know which of the water and land within that area will be regulated, yet they must still conform their activities to the new law."

And the U.S. House of Representatives Committee on Science, Space, and Technology, chaired by Republican Lamar Smith, posted maps on the committee website provided by the EPA that illustrate the areas potentially defined as wetlands under the new rule, here (see: "EPA State and National Maps of Waters and Wetlands").