New Mexico cattle farmers sue EPA over new water rule

The legal water wars are far from over.

A new federal water rule called the Navigable Waters Protection Rule, which replaces the Barack Obama administration’s deeply unpopular so-called Waters of the United States rule redefinition,  takes final effect June 22 but is already being challenged in court on two fronts.

President Donald Trump fulfilled a campaign promise when his administration revoked the WOTUS rule and replaced it with a new set of water regulations the administration said fits more closely with the intent of the Clean Water Act.

But others disagree. A group of New Mexico cattle growers claim certain provisions of the new rule still overreach and are suing to have those provisions overturned.

From the other side, 17 states and two cities are also suing over the new rule, claiming it rolls back important water protections by removing ephemeral bodies of water from federal protection. “This rule opens the door to new and worse industry pollution that endangers our wildlife, dirties our drinking water and risks harmful contamination of our nation’s waterways,” California Attorney General Xavier Becerra said in a press call May 1. Becerra and New York Attorney General Letitia James are leading the coalition in challenging what they call a regulatory rollback. They claim the Trump administration disregarded scientific evidence, failed to fully consider the impact on water quality and interpreted WOTUS in a manner inconsistent with the Clean Water Act.

Cattlemen object

The New Mexico cattlemen are not seeking the repeal of the entire new rule, but only of certain provisions within it. “Over the years, EPA has changed the definition of  navigable waters to increase its regulatory authority at the expense of property owners’ rights. Despite the improvements of the new rules, its regulations are still unconstitutionally broad,” said Tony Francois, a senior attorney at Pacific Legal Foundation, which is representing the cattle growers. “Specifically, the new rules let federal agencies control ponds, wetlands and other property far removed from navigable waterways. These were never intended by Congress to be covered by the Clean Water Act.”

New rule an improvement, but…

Francois stressed to High Plains Journal that overall, the new rule is an improvement over the old rule. “We are not suing to overturn the entire rule, just certain provisions,” he said. “The courts should leave the rest of the rule in place.”

He singled out two provisions over which the plaintiffs will be seeking a preliminary injunction. Section 328.3(c)(12) of the new regulation defines regulated tributaries as intermittent or perennial. “Our clients object to the inclusion of intermittent tributaries.” Section 328.3(c)(1)(ii)-(iv) of the new regulation defines regulated wetlands to include those that don’t abut navigable rivers and lakes, but are typically flooded by them, or separated from them by barriers like berms, roads, levees, and the like. “Our clients object to the inclusion of those classes of wetlands as well,” said Francois.

If either lawsuit results in a judge’s enjoining the new water rule, water regulation will again revert to the 1986 regulations while the suits proceed. Francois hopes that doesn’t happen. “Preventing the new rule from taking effect at all is not what we are seeking; we are only seeking judicial review of the remaining excesses in the new rule,” he told High Plains Journal.

Francois said other cattlemen’s groups are studying the New Mexico litigation and may join as plaintiffs later.

David Murray can be reached at [email protected]. 

SIDEBAR

History of WOTUS fight

The Trump administration’s new water rule is the product of a contentious process extending over several years. The Obama administration triggered a nationwide fight when it proposed (in a 70-page document) what it called a “redefinition” of the term “waters of the U.S.” in existing water regulations.

The way for the rule was left open by a Supreme Court ruling in Rapanos v. United States (2008). In a split plurality decision (4-4-1), Justice Anthony Kennedy—who supplied the deciding vote but didn’t fully agree with either side on the court—wrote that the Clean Water Act could apply to land whose waters had a “significant nexus” to regulated waters based on a complicated variety of factors. He was building on language included in an earlier Clean Water Act case in the Supreme Court, Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (2001). Kennedy’s “significant nexus” term was criticized at the time and later as so ambiguous that it settled nothing and invited further litigation.

The Obama White House’s Council on Environmental Quality decided the Rapanos decision provided an opening for tighter water regulation. The CEQ directed the Corps of Engineers, the nation’s water regulator, to develop the new rule together with the Environmental Protection Agency.

Farm and trade groups went on high alert when they got wind of the process. In developing the WOTUS rule, the Obama administration violated some of its own procedures, providing less comment time than required by the Administrative Procedures Act. The EPA was charged with breaking the law by promoting the WOTUS rule on social media before the comment period was complete.

Corps was unwilling partner

An anonymous disgruntled Corps of Engineers employee leaked documents to then Rep. Jason Chaffetz (R-Utah) and his staff revealing that the Corps was an unwilling partner and that its experts had internally criticized the Obama administration’s WOTUS rule as not based on science. The minute the rule was enacted in 2015, it faced a barrage of lawsuits from states, farm and trade groups. It was suspended while the suits were sorted out, and eventually consolidated.

Landowners, farmers and ranchers argued that the WOTUS rule was not only flawed in its development, it amounted to a massive federal overreach and a virtual abrogation of the Constitution’s protections of private property. Any property with a depression that collected rainwater or an intermittent puddle could be regulated under the new rule, they claimed.

As a presidential candidate, Donald Trump made repealing WOTUS a key talking point of his campaign. He began the effort almost immediately after being elected, but it proved to be a slow process. The EPA had to first formally repeal the Obama WOTUS rule, then craft a new rule, then go through a new comment process. Between December 2019 and this June, water regulation reverted to interim rules in place in 1986. The enactment of the new rule rendered moot the remaining lawsuits against the Obama rule.

The title of the new Navigable Waters Protection Rule refers to the Trump administration’s contention that the Clean Water Act only intended to regulate waters with a direct connection to navigable waters.