On the 239th anniversary of the Second Continental Congress declaring the fledgling United States should be free from an oppressive, oversized government, the National Pork Producers Council and 13 other organizations filed a lawsuit asking a federal court to vacate a new Clean Water Act (CWA) regulation that will bring under federal jurisdiction “a staggering range” of land and water and adversely affect numerous agricultural and business activities.
The final “Waters of the United States” (WOTUS) rule was issued May 27, 2015, by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers ostensibly to clarify the agencies’ authority under the CWA over various waters. Currently, that jurisdiction – based on several U.S. Supreme Court decisions – includes “navigable” waters and waters with a significant hydrologic connection to navigable waters. The WOTUS rule would broaden that to include, among other water bodies, upstream waters and intermittent and ephemeral streams such as the kind farmers use for drainage and irrigation. It also would encompass lands adjacent to such waters.
In their suit filed in the U.S. District Court for the Southern District of Texas against EPA and the Corps of Engineers, the agricultural and business groups said the final rule “bears no connection” to the CWA and violates provisions of the U.S. Constitution. They also allege that in writing the rule the agencies misinterpreted the Supreme Court’s decisions on CWA jurisdiction and subverted the notice-and-comment process by failing to seek public comments on scientific reports used to write the regulation and on major revisions of the proposed rule, conducting an inadequate economic analysis and engaging in an advocacy campaign during the comment period. (Click here to read the complaint.)
Similar lawsuits have been filed by the attorneys general of 27 states.
“The final rule is vague and fails to let regulated parties know when their conduct violates the law,” said NPPC President Dr. Ron Prestage, a veterinarian and pork producer from Camden, S.C. “We’re asking the court to find the rule arbitrary, capricious, an abuse of discretion and not in accordance with law; and to find that it’s unlawful because it’s contrary to constitutional rights and powers, inconsistent with the agencies’ statutory authority under the CWA and was promulgated without following procedures required by law. The bottom line is we want the court to set aside the rule.
“We all want clean water,” Prestage said, “but this rule isn’t about clean water, it’s about EPA and the Corps taking over private property, growing the size of government and micromanaging hundreds of farming and business activities.”
NPPC is backing bills now making their way through Congress that would require EPA and the Corps of Engineers to withdraw the WOTUS rule and to work with affected parties, including farmers, on a new regulation.