Agricultural Groups Among Plaintiffs Suing EPA For Revised Water Rule

Left to its own devices, water doesn’t remain still for long. The same could be said for regulations to define the federal government’s scope to control the discharge of pollutants and manmade sediment into bodies of water.

Last time I wrote about “Waters of the United States” was an overview of WOTUS’ evolving definition and major actions shaping it from the U.S. Environmental Protection Agency, U.S. Army Corps of Engineers and the U.S. Supreme Court (SCOTUS). Keep that tab open – some of it might come in handy as you read on.

It’s not difficult to grasp the basics of Congress’ intent in passing the 1972 Clean Water Act (CWA) or how tricky it’s been since for the EPA and courts to wrestle with what, precisely, constitute governable “waters” for this purpose. Trying to keep up with the specific points of contention and how they’ve been addressed over the years, though, is something that challenges even legal experts.

Disturbing the land, any land, might affect nearby water. Which separate body of water impacts a navigable water such as a river, lake or ocean, and whether it’s close enough that it could potentially do so – and the federal government’s reach in controlling discharges into it – is essentially what’s at issue in these court cases and rule revisions.

A Returning Player

In 2007, the EPA halted a home construction project near Idaho’s Priest Lake because the landowners, the Sacketts – who also owned a construction/excavation company – were gravel-filling what the EPA and Corps said was a federally protected wetland, subject to CWA jurisdiction, without a permit.

The following year the Sacketts sued EPA, arguing their wetland did not have the “continuous surface connection” with navigable waters that Justice Scalia wrote about in the 2006 SCOTUS Rapanos v. United States decision – in which he specified a wetland may not be considered adjacent to a navigable water “based on a mere hydrologic connection.”

That hydrologic connection, or “significant nexus” test, that Justice Kennedy alluded to – which I wrote about in my last post – seems to be the sharpest point around which regulations about WOTUS have shifted for the last 17 years.

Lower courts upheld EPA’s motion to dismiss the lawsuit, but in 2012 SCOTUS reversed these rulings and sent Sackett v. EPA back to the district court for litigation, where it was seven more years until the court entered a summary judgment in favor of EPA. An appeals court upheld this ruling, and eventually SCOTUS again agreed to hear the case. Oral arguments took place last October.

The SCOTUS decision is expected in early 2023, and various parties have expressed surprise the Biden EPA and Engineers Corps went forward with publishing its revised Clean Water Rule on Jan. 18, set to go into effect on March 20, since the Sackett decision has potential to negate parts of it. One party is The Fertilizer Institute (TFI), which represents fertilizer producers, distributors and retailers.

“We wish (EPA) would have waited until the Supreme Court published their opinion (on Sackett), but they didn’t,” said Reagan Giesenschlag, Government Affairs manager for TFI, last week.

She noted while TFI’s main interest is how regulations will affect its members’ ability to extract raw materials for their products – the U.S. is the third-largest producer of phosphate and nitrogen globally, two major agricultural fertilizers – it is also invested in how the rule impacts farmers’ ability to plant and fertilize crops. “We definitely support all of their issues with it.”

One issue is about how the EPA’s rule will treat prior converted cropland, or PCC. This refers to wetland that was drained or otherwise converted to make ag production possible prior to Dec. 23, 1985, and since 1993 this land has been excluded from WOTUS unless it is abandoned and reverts to wetland. EPA promises to continue excluding this wetland if once in every five years the area has been used “for the production of an agricultural commodity, or … will continue to be used for the production of an agricultural commodity in a commonly used rotation with aquaculture, grasses, legumes or pasture production.”

The Navigable Waters Protection Rule (NWPR) the Trump EPA enacted in 2020 changed this definition to say PCC reverting to wetlands is abandoned when it “is not used for, or in support of, agricultural purposes at least once in the immediately preceding five years,” while broadening the scope of “agricultural purposes.” The new EPA rule will revert to the narrower 1993 wording, which will scrutinize abandoned farmland wetlands more closely than the Trump rule.

New Lawsuit On The Docket

Those challenging the impending EPA rule aren’t waiting on the second Sackett opinion, as 17 farm, construction, petroleum and other organizations (not including TFI at this time) jointly filed petition against it in the Southern District of Texas federal court on Jan. 18 – the same day EPA published in the Federal Register.

The lawsuit alleges the rule is “vague and expansive” in describing/defining waters that are considered WOTUS, and landowners cannot know what all aquatic features on their land will be subject to governance and require a permit to work around. “The costs of making a wrong decision under the CWA are harsh,” it states, citing the fine for a first-time offense of negligently discharging into a WOTUS is up to $25,000 per violation per day and can include jail time.

The petition goes on that it also costs landowners in consulting experts to determine whether a feature such as a ditch, non-navigable pond across state lines or intermittent water channel falls under WOTUS.

“This isn’t what clean water regulations were intended to do,” said Zippy Duvall, president of the American Farm Bureau Federation – one of the eight agricultural plaintiffs. “Farmers and ranchers should not have to hire a team of lawyers and consultants to determine how we can farm our land.”

In 2015 the Obama EPA enacted its Clean Water Rule based on Kennedy’s “significant nexus” opinion, employing a categorical case-by-case review of certain land features. In 2019 this rule was rescinded by the Trump administration and the following year its EPA enacted the NWPR, which relied more on Scalia’s “surface connection” standard to determine a WOTUS.

But in August 2021, a federal court in Arizona set aside the NWPR in Pasqua Yaqui Tribe v. EPA, citing “fundamental, substantive flaws that cannot be cured without revising or replacing the NWPR’s definition.”

So, since the Biden EPA rule isn’t yet in effect – under what WOTUS guidelines is the agency operating? It turns out the EPA has gone retro, relying for now on pre-2015 regulatory guidance, rules instituted by EPA chiefly in 1986 and 1988.

“We think this rule has the potential to be as broad as the 2015 rule was,” said Giesenschlag. “(EPA) can do that on a case-by-case basis, and it may be slower, but over time they would pull more waters under (federal) jurisdiction.

“We’re all just patiently awaiting the Sackett decision to see what can of worms that opens, and just preparing to kind of assess that.”