The Biden administration’s attempt to narrowly interpret the Supreme Court’s Sackett decision has been met with lawsuits in North Dakota and Texas from more than half the states in the country and trade associations representing agriculture and a wide range of other industries.
New complaints were filed Monday in two federal courts that have already blocked implementation of a rule the Biden administration issued in January, several months before the Supreme Court’s May Sackett decision that tossed the long-standing “significant nexus” test used by EPA and the Army Corps of Engineers to determine whether waters are under federal jurisdiction.
EPA and the Corps had vowed to complete a “surgical” update to a rule the agency rolled out earlier this year, according to EPA Agricultural Adviser Rod Snyder. The legal actions filed Monday allege the operation was unsuccessful.
“The amended 2023 rule does not give adequate notice of what the terms ‘relatively permanent,’ ‘certain times of year,’ ‘continuous surface connection,’ ‘interstate waters,’ ‘impoundments,’ ‘tributaries,’ are defined and interpreted as meaning,” plaintiffs note in an amended complaint filed by the states of Texas and Idaho in the Southern District of Texas.
The American Farm Bureau Federation, National Cattlemen’s Beef Association, National Corn Growers Association and a host of other national and local trade groups said in their new complaint, also filed in Texas, that the new rule “uses an unworkable definition of WOTUS that conflicts with the CWA, the Constitution, and Supreme Court precedent.”
Rod Snyder, EPAAmong other legal problems, the groups said the rule as amended “effectively reads the term ‘navigable waters’ out of the CWA.” The act’s definition of “navigable waters” is “the waters of the United States, including the territorial seas.”
In addition, the agencies are asserting “improperly vague and malleable jurisdiction over ‘relatively permanent, standing or continuously flowing waters connected to [traditional navigable waters, the territorial seas, and interstate waters], and waters with a continuous surface connection to such relatively permanent waters or to traditional navigable waters, the territorial seas, or interstate waters,’” the groups said, quoting the conforming rule from the Sept. 8 Federal Register.
That description “provides insufficient practical guidance to the regulated community,” the groups said.
“Although the amended rule defines WOTUS as covering ‘wetlands with a continuous surface connection’ to a covered water, it fails to include the requirement that such wetlands be ‘indistinguishable’ from those waters, as Sackett requires,” the groups said. “This omission renders the definition of wetlands covered by the CWA unclear and impermissibly broad.”
In all, the January rule has been enjoined in 27 states; a separate order by the 6th U.S. Circuit Court of Appeals in Cincinnati enjoins implementation in Kentucky.
Under the now-eliminated test, the agencies could prohibit discharges into waters and wetlands that have a “significant nexus” to “waters of the U.S.”
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But in its May ruling, the Supreme Court said that was beyond the reach of the Clean Water Act, calling the significant nexus test a “freewheeling inquiry” that gave too much authority to the federal agencies. Instead, the court, quoting its earlier Rapanos decision, said “the CWA’s use of ‘waters’ should include ‘only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’”
The court also said that for wetlands to be considered “adjacent” to WOTUS, they must be “indistinguishable from waters of the United States.”
The new complaints continue to claim EPA and the Corps have exceeded the authority outlined in the Clean Water Act.
“Congress was clear in enacting the CWA that primary authority over land and waters belongs with the states,” Texas and Idaho said in their complaint.
The North Dakota Farm Bureau and Cass County (N.D.) Farm Bureau filed an amended complaint as plaintiff-intervenors in North Dakota, where 24 states led by West Virginia also filed a new lawsuit and won a preliminary injunction earlier this year.
Tim Bishop, the Mayer Brown attorney representing AFBF and other trade groups in the litigation, said he would be seeking to add more plaintiffs to the litigation in North Dakota to expand the reach of the lawsuit beyond the two Farm Bureau entities that have been allowed to intervene thus far.
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