A federal judge dismissed the Oregon Cattlemen’s Association (OCA) suit challenging the Clean Water Act earlier this month.
In April 2019, the suit filed against the Environmental Protection Agency (EPA) challenged the “navigable waters” definition in the 2015 Clean Water Act and sought to clarify which regulations apply to its members. OCA challenged waters which are non-navigable under Clean Water Act protection such as small streams and isolated wetlands.
Chris Martin, a member of the OCA, stated in court documents his Malheur County land is a rangeland desert that does not contain any permanent water features. Martin stated he occasionally does maintenance work on the property around the water features. In addition, Martin participated in the Conservation Stewardship Program for habitat restoration of the sage grouse on his property.
In Martin’s statement, he claimed the 2015 “navigable waters” definition “lacks sufficient clarity and is riddled with ambiguity” on the land he manages. Martin claimed an injunction against the rules would allow him to engage in normal farming activities and continue his conservation practices.
U.S. District Judge Michael Mosman dismissed the suit “due to lack of standing” without prejudice. Mosman stated the claims had not kept pace with change in regulations, and the OCA can refile its case.
“What I have here is a case that has evolved from one set of regulations to another, but the case itself hasn’t sufficiently evolved to meet standing requirements,” Mosman said. “Some of those same problems have at least a shot at being curable, so I am dismissing the case for lack of standing but without any prejudice to try again.”
The Navigable Water Protection Rule, adopted in April 2020 by the EPA and Department of the Army, resolved the “waters of the United States” (WOTUS) definition under the Clean Water Act. The new rule clarified features that are not “waters of the United States” such as those which “only contain water in direct response to rainfall (e.g., ephemeral features), groundwater, many ditches, prior converted cropland, and waste treatment systems,” according to the EPA.
In an email to Bloomberg Law, the EPA stated, “The new rule provides much-needed regulatory certainty for farmers, landowners, and businesses—ending confusion that has existed for decades—while protecting the nation’s navigable waters and striking an appropriate balance between federal and state authority over aquatic resources.”
Anthony Francois, an attorney with Pacific Legal Foundation, argued OCA’s members would now be required to obtain federal approval of new and ongoing land-use projects at the cost of tens of thousands of dollars and months, if not years, of delay.
However, the assertion is no longer the case under the new rules. Mosman discarded the argument stating he does not want to “open the door to people having standing if they have to pay to get help to find out whether a complex law applies to them.”
The Pacific Legal Foundation is also representing the New Mexico Cattle Grower’s Association and Washington Cattlemen’s Association in their challenge to the revision of the rules. The suits are challenging non-jurisdictional waters not connected to “navigable waters” under the Clean Water Act. Pacific Legal Foundation is stating the Navigable Waters Protection Rule exceeds the EPA’s statutory authority under the Clean Water Act and the Congressional Review Act.
Sarah R. Liljefelt, OCA water resources committee chair, told WLJ, “The OCA is considering its option to refile with more specific member declarations. Of course, one is never happy to have their suit dismissed.
“In this instance, however, OCA has the opportunity to refile, and it is using this opportunity to address in more detail the specific effects of the regulations on its members, always keeping its members’ and the industry’s best interests at the forefront. OCA will make final decisions regarding the litigation in the coming weeks.”
