Navigating through Waters of the U.S.

By Robert Thompson

Many of us have followed the controversial Waters of the U.S. (WOTUS) rule published by the Environmental Protection Agency and the U.S. Army Corps of Engineers. The rule amends the definition of “waters” in ways that (as reported in the Federal Register) further the two agencies’ stated intention to make the scope of the Clean Water Act (CWA) “easier to under-stand, more predictable and consistent with the law and peer-reviewed science.”

The EPA and the Corps of Engineers ostensibly wrote the rule in response to several cases questioning the agencies’ juris-diction by challenging the definition of “navigable waters” and adjacent wetlands in the CWA. The EPA and the Corps issued a proposed rule they argued would bring “clarity” and “efficiency” to determining the coverage of the CWA.

After an extended period for comments from the public, the WOTUS rule was issued in June 2015. The rule has proven to be one of the most controversial regulatory developments in recent years. Instead of simply clarifying the jurisdictional reach of the CWA, the rule has been viewed by agriculture groups as expanding it—pushing the regulatory reach beyond the banks of streams that are navigable-in-fact into areas viewed by many to be far from what is reasonable and intended under the CWA.

Many challenges were filed immediately after the rule was issued. Eighteen states challenged the validity of the rule on the grounds the jurisdiction of the EPA and the Corps doesn’t extend to waterways that aren’t navigable-in-fact.

The case immediately became entwined in a complex but important legal battle about where the case should be heard. The challenging states filed cases in the U.S. District Courts of various states. The EPA and the Corps took the position that the dispute was one of a narrow category of cases in which jurisdiction lies in the U.S. Courts of Appeal, which are just below the U.S. Supreme Court. The cases in the District Courts were consolidated in the Sixth Circuit Court of Appeals, which covers Kentucky, Michigan, Ohio and Tennessee. In February of 2016, the Sixth Circuit ruled jurisdiction in the cases does in fact lie in the federal appellate courts.

The rule has also been challenged in Congress, but no legislative solution appears to have the votes to override an expected veto by President Barack Obama. Legislative challenges are certain to continue after the presidential election and after a new president is inaugurated.

The coming substantive ruling by the Sixth Circuit will undoubtedly be only the next step in a long legal and legislative fight over the federal government’s reach in controlling the use of private property. The potentially expansive jurisdiction sought by the EPA and the Corps could have a significant and even determinative impact on those who own and operate land with wetlands, waters and streams that ultimately flow into traditionally navigable streams.

 

Robert (Bob) Thompson is a partner with international law firm Bryan Cave. He focuses on complex commercial business litigation in both state and federal courts throughout the U.S. He is co-leader of the Food and Agribusiness Industry Group and is a member of the firm’s executive committee.

Note: This story appeared in the October 2016 issue of Drovers.

Loosing a Water Right- yes it can happen.

Washington’s water law includes a principle that a water right is perfected, defined, and  maintained through beneficial use. The expression “use it or lose it” is sometimes applied  to describe this western water law principle. Put simply, a water right may be wholly or  partially lost through extended periods of non-use. The return of unused water to the  state is called relinquishment. The purpose of relinquishment is to ensure that  Washington’s limited water sources are put to maximum beneficial use for all of  Washington’s citizens. To keep it simple, 5 or more successive years of non-use causes relinquishment unless you have good cause for said non-use. There are several categories described in RCW 90.14.140 that forgive the non-use.

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13 states sue over rule giving feds authority on state water

 JAMES MacPHERSON Associated Press
 
BISMARCK, N.D. – Thirteen states led by North Dakota filed a lawsuit Monday challenging an Obama administration rule that gives federal agencies authority to protect some streams, tributaries and wetlands under the Clean Water Act.
North Dakota Attorney General Wayne Stenehjem said the “Waters of the U.S.” rule by the U.S. Environmental Protection Agency and the Army Corps of Engineers is a “federal power grab” that is “unnecessary and unlawful and will do nothing to increase water quality.”
The rule – a response to calls from the U.S. Supreme Court and Congress for the EPA to clarify which smaller waterways are protected – was published in the Federal Register on Monday and takes effect Aug. 28.
According to the EPA, the waters affected would be only those with a “direct and significant” connection to larger bodies of water downstream that are already protected. It says the aim is to protect the waters from pollution and development and to safeguard drinking water.
The EPA did not immediately respond to questions from the Associated Press.
The lawsuit, filed in federal court in Bismarck, asks for the rule to be thrown out. The other states involved are Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, New Mexico, Nevada, South Dakota and Wyoming.
Republicans in Congress, and some Democrats including North Dakota Sen. Heidi Heitkamp, also have backed legislation to block the rules.
Stenehjem told reporters that the rule “illegally” gives authority to the EPA and the Corps and will add “red tape and other obstacles” to farmers, ranchers and landowners. Failure to get permits under the new rules will result in “steep penalties and even jail time,” he said.
He said farmers and other landowners could be subjected to federal oversight for even dry ditches on their land. The thousands of small ponds in the Upper Midwest known as prairie potholes also will be regulated, he said.
Stenehjem said North Dakota took the lead on the lawsuit because of its large agricultural sector, “so it just seemed like a logical place.”

UPDATE ON NORTHWEST ENVIRONMENTAL ADVOCATES V. EPA

On June 18, 2015 before Federal Judge Ricardo Martinez the argument to dismiss the case ofNorthwest Environmental Advocates was heard. Jack, Amber, and Toni went over to Seattle as WCA is an intervenor in the case.  WCA has hired Western Resource Legal Clinic, a pro bono clinic based out of Lewis and Clark, to represent them in this case.

     This case was brought by Northwest Environmental Advocates to force the EPA to look to the ESA to protect listed fish species under the Clean Water Act (CWA). The CWA is just that, to protect clean water, not fish habitat. The CWA, at this time, does not have a component to protect listed fish species.  Both Timber and WCA have intervened on behalf of EPA, so both intervenors had the chance for argument on June 18, 2015.
    From a legal standpoint a motion to dismiss is hard to win as it does not take into consideration the merits of the case, only procedural issues. If there are any issues that cannot be dismissed outright, then the case continues. EPA argued that the case could not continue because Northwest Environmental Advocates has not brought their case in a timely manner and the statute of limitations has run on their claims. Timber and WCA argued that Northwest Environmental Advocates did not bring claims which could be heard before the Court as the Court had previously ruled, in similar type cases, that the CWA does not require the EPA to protect fish species. Both intervenors argued case law, and WRLC, on behalf of WCA, also argued the logistics of trying to combine ESA into the CWA. The time frames alone for both to be considered do not mesh. Northwest Environmental Advocates argued that nonpoint source pollution is not being controlled by EPA  and poses a huge risk to fish species if these fish are not considered under the CWA. The main argument for Northwest Environmental Advocates was if EPA does not consider ESA listed fish species when enforcing the CWA, EPA could potentially approve water quality standards that could kill fish. WRLC argued that the CWA is to protect clean water, the ESA is to protect listed fish species, they are not related documents and cannot be combined at the whim of Northwest Environmental Advocates.
   WRLC did a fantastic job on behalf of WCA. The Judge took all arguments under advisement and will rule at a later date. Federal Court has strict case schedules so the ruling should come quickly to allow the parties to stay on schedule with the next round of briefing.

WCA Board Meeting

There was a great turnout tonight at the WCA Executive board meeting. A number of issues were discussed, including the brand program revenue,  ADT, Sage Grouse and much much more.  Go to Jack’s blog to see more. http://www.washingtoncattlemen.org/jacks-blog/

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NW Environmental Advocates vs EPA case

I am headed to federal court in Seattle with jack and amber as wca are intervenor in the nw environmental advocates vs EPA case on behalf of EPA regarding their ability to enforce the clean water act to protect fish listed under ESA.

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