States, agencies bring litigation against WOTUSWritten by Natasha Wheeler
The Clean Water Rule: Definition Waters of the United States (WOTUS) is slated by the Federal Register to be effective on Aug. 28.
“The state has filed a preliminary injunction, and we have filed an amicus in support of that,” states Wyoming Association of Conservation Districts Executive Director Bobbie Frank.
Wyoming is one of 12 states and two state agencies in a coalition that is currently bringing litigation against the rule in federal district court in North Dakota.
“Hopefully, the Court rules, and the rule is put on hold until some of the issues, concerns and process issues are resolved,” she comments.
State suits have also been filed in Georgia, Texas, Oklahoma and Ohio. Nearly 30 states, as well as many representatives from industry, are actively challenging the rule.
“Most concerning is the expansion of jurisdiction and the amount of effort that it is going to take for local communities and land owners to figure out who is within jurisdiction, who is out and what the implications are,” notes Frank.
She explains that landowners will be responsible for determining and demonstrating the status of water on their properties, which will be difficult.
“It’s very cumbersome to even figure out the rules,” she states.
One of Frank’s concerns includes the rule’s use of Federal Emergency Management Association (FEMA) flood plain designation maps to determine regulated waters.
“Not all of the state has FEMA flood plain mapping. I am not sure how that is going to be reconciled,” she remarks. “There is no FEMA map on the upper North Platte. What is EPA going to do to figure that out if they are going to use flood plains as a basis?”
Frank relates that there are also inconsistencies, such as ditches in the Big Horn Basin that appear to be perennial, or filled with flowing water year-round, according to the maps, even though they are not.
“The fact that they would make the rule effective so quickly after publishing, especially given that they are using an approach that wasn’t even proposed in the rule making process, is concerning. Nobody had an opportunity to comment on it,” Frank adds.
For example, the buffer approach for jurisdiction was not outlined in the original, proposed rule.
“Basically, they are saying anything within a 1,500-foot buffer of the ordinary high water mark is going to be jurisdictional,” she notes.
Jurisdiction for waters within a 4,000-foot buffer of the ordinary water mark is to be determined on a case-by-case basis, using a significant nexus test.
“Using the way they determine significant nexus, it will include everything,” states Frank.
According to an illustrated map that she has been reviewing, this could even involve isolated tributaries and wetlands, under jurisdiction due to the buffer zones.
“The 1,500-foot buffer and the 4,000-foot buffer were not part of the rule making process so nobody had an opportunity to weigh in on that,” she comments.
Any water that falls into jurisdiction of the WOTUS rule will be subject to permitting and regulation.
“If landowners are going to do an activity, they have to know whether they are jurisdictional or not and whether they are going to be required to get a 404 permit. If they are required to get a 404 permit, that is a whole process through the Army Corps of Engineers and EPA, who determines if they are permitted to do the activity,” Frank explains.
A permit would be required for activities that potentially alter a water feature such as adding sediment to a tributary or result in a fill.
“If a landowner does an activity and then finds out later that they needed a permit, usually through some regulatory action by the agencies, they can be held liable,” she continues.
With the time it takes to read through the rule and determine all of the specifics for jurisdiction leads, Frank believes that landowners should consider everything within the boundaries of the regulation.
“I think we are safe to just assume that everything is going to be regulated because I think that it’s not unfair to read the rule that way,” she states.
Considering the time, costs and efforts of permitting, Frank is concerned about how the rule is written will take affect.
“Districts spend a tremendous amount of time and energy working with their local landowners and communities on projects that may or may not require permitting, and our concern is helping our local people figure out which waters are jurisdictional and which aren’t,” she comments.
The Wyoming Association of Conservation Districts, Farm Bureau and other organizations have shown their support for a preliminary injunction, delaying the implementation of the WOTUS rule.
“We are hopeful that the government backs up on this rule and starts over with some adequate consultation,” Frank states.
A hearing was held Aug. 21 in Fargo, N.D. for the court to hear arguments for and against the preliminary injunction, which would allow the legal process to play out before the rule goes into effect. The Georgia multi-state coalition also held oral arguments for their preliminary injunction last week, and that court has promised to issue a ruling before Aug. 28.
Efforts are also underway in the Sixth Circuit Court of Appeals to review the rule, as it has not yet been determined whether the controversy belongs in the lower federal courts or the court of appeals. Various layers of procedural activity are in motion, and results should begin to play out within the next month or two.
Some litigation update information for this article was provided by Wyoming Senior Assistant Attorney General Dave Ross.