Seventeen farm, construction, and mining groups filed suit in federal court to overturn the Biden administration’s definition of the upstream reach of water pollution laws. They argued that the new Waters of the United States (WOTUS) rule was “so opaque, uncertain, and all-encompassing” that no one could confidently know its limits.
“Just because a piece of land occasionally gets wet doesn’t make it a navigable waterway,” said Steven Sandherr, chief executive of Associated General Contractors of America, a construction industry trade group, on Thursday. The lawsuit to overturn the WOTUS rule was filed in federal district court in Galveston, Texas, on Wednesday, the same day the rule was published in the Federal Register.
The new WOTUS rule covers more waterways and wetlands than the narrower definition written during the Trump era, which was overturned by a federal court in 2021. An earlier WOTUS definition by the Obama administration was tied up in court and never took effect.
Like the challenges to the Obama definition, the trade group lawsuit criticized the new WOTUS definition as irresponsibly broad and covering land and waterways that have no connection to the navigable waters under federal jurisdiction. Congress said in 1972 that clean water law applied to the waters of the United States and left it to federal agencies to define them.
In 2006, the Supreme Court ruled that wetlands with a “significant nexus” to navigable waters were covered by the water pollution law. Courts have generally followed that rule since. A Supreme Court ruling is expected early this year on an Idaho case that would limit federal protection of wetlands to land with a surface connection to a waterway.
When it unveiled the WOTUS rule last month, the EPA said it covered the ground intended by Congress in the 1972 Clean Water Act — “territorial seas, interstate waters, as well as upstream water resources that significantly affect those waters.”
“We believe a judge will recognize these regulations exceed the scope of the Clean Water Act, and direct EPA to develop rules that enable farmers to protect natural resources while ensuring they can continue stocking America’s pantries,” said Zippy Duvall, president of the American Farm Bureau Federation, one of six ag groups challenging the new rule.
The American Road & Transportation Builders Association said the new WOTUS rule “threatens to nullify the benefits of the 2021 federal infrastructure law” by delaying permits for construction projects. Roadside ditches might be challenged as protected waterways, it said. The National Cattlemen’s Beef Association said that the treatment of ephemeral streams, which flow for only parts of a year, was again in question.
“Regulating these features at the federal level under the Clean Water Act disrupts normal agricultural operations and interferes with cattle producers’ abilities to make improvements to their land,” said the NCBA.
To read the 42-page court filing, click here.