While the future of waters of the U.S. (WOTUS) remains in flux until the Biden administration finalizes a new rule, a South Carolina court has dismissed a challenge to the Navigable Waters Protection Rule (NWPR).
The U.S. District Court for the District of South Carolina in Charleston granted a remand without vacatur July 14, permitting the current rule to remain in effect.
In 2020, 11 groups led by the South Carolina Coastal Conservation League filed a lawsuit, alleging the NWPR adopted under the Trump administration was “arbitrary, capricious and unlawful.” The suit also claimed the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers completed the rule based on “political winds and currents” in cutting back protections.
The groups argued that NWPR excluded “ecologically important ephemeral streams” and removed protections for some intermittent and perennial streams.
Several agricultural groups intervened in the case, including the National Cattlemen’s Beef Association (NCBA), American Farm Bureau Federation, National Corn Growers Association, National Pork Producers Council and U.S. Poultry and Egg Association.
NCBA celebrated the dismissal, stating NWPR is “a major improvement” to the 2015 WOTUS rule adopted under the Obama administration.
“This decision is a victory for America’s cattle producers, ensuring regulatory certainty while the Biden Administration moves through the lengthy rulemaking process,” said NCBA Chief Environmental Counsel Scott Yager in a statement.
“NCBA opposes any federal action that hinders producers’ ability to make investments in their land and care for their cattle. Moving forward, NCBA will continue engaging with the Biden Administration, Congress, and the Courts to protect cattle producers’ property rights.”
In June, the EPA announced it was reviewing NWPR after Administrator Michael Regan announced the rule was “leading to significant environmental degradation” in certain portions of the country. The EPA found that in the Southwest, “nearly every one of over 1,500 streams assessed has been found to be non-jurisdictional.”
The conservation groups in early July asked the district court to vacate the current rule and revert to the 2015 WOTUS rule while the Biden administration reviews WOTUS. The administration asked the courts to remand the matter back to the EPA while reviewing the rule.
Other actions
In April, Rep. Mariannette Miller-Meeks (R-IA-02) introduced a resolution to uphold NWPR. At the time of introduction, Meeks stated NWPR is “more workable and keeps our water and land clean” without sacrificing business.
In a June 9 hearing of the Senate Appropriations Subcommittee on Interior, Environment and Related Agencies, Committee Ranking Member Sen. Lisa Murkowski (R-AK) asked Regan not to engage in regulatory overreach, saying EPA should work with Congress and “consider all perspectives before taking action.”
On June 22, 2021, in a case filed by the Navajo Nation and later joined by the pueblos of Laguna and Jemez in New Mexico, the federal government asked the U.S. District Court for New Mexico to remand NWPR to allow the EPA time to pursue new rulemaking to redefine WOTUS.
Members of the Congressional Western Caucus sent a letter to Regan and Acting Assistant Secretary of the Army for Civil Works Jaime Pinkham in July, expressing serious concerns with the Biden Administration’s decision to review NWPR and reopen WOTUS.
“The NWPR was an immense step forward in rectifying the regulatory overreach that was attempted in 2015, and your agencies’ vague announcement and opaque process fails to ensure our communities will not—once again—be subject to further uncertainty and government overreach,” the letter read.
Yager, speaking with Mike Adams on the Adams on Agriculture talk radio show, stated based on court victories for NWPR and the 2015 WOTUS rule being overturned, the current rule is legally defensible. Yager stressed that it took almost four years for the Obama administration to write the 2015 WOTUS rule, so changes by the Biden administration will take a while as it needs to go through the rulemaking process as required by the Administrative Procedure Act.
“And for producers, landowners and users across the country, we’re not going to get blindsided by a new rule, it will go through the process, we’ll know what’s coming before it gets here, and [the current] rule will continue to be in place.”
Yager encouraged ranchers and landowners to continue to be engaged, have conversations with their local EPA regions and EPA ag advisers, and comment when the opportunity arises.
The EPA will organize meetings with stakeholder groups, including farmers and ranchers, according to Office of Water Assistant Administrator Radhika Fox. She added regional roundtables would also be held later in the fall or winter. — Charles Wallace, WLJ editor
