EPA, Corps of Engineers Face Third Lawsuit on WOTUS Rule

DTN writer Todd Neeley reported today that, “Fourteen states, the city of New York and the District of Columbia have asked a federal court to vacate the latest EPA and U.S. Army Corps of Engineers action on the waters of the United States, or WOTUS, rule and apply a significant nexus test when regulating waters across the country.

“A new federal lawsuit alleges the agencies failed to follow the Administrative Procedure Act when completing a rule that resets the WOTUS rule back from the 2015 version to the 1986 version while the agencies work on a rewrite.

“One of the hallmarks of the 2015 WOTUS rule was the use of a significant nexus test when determining jurisdictional waters. That is, non-traditionally navigable waters such as headwater streams and some wetlands are protected if they significantly affect the integrity of traditional navigable waters.”

Mr. Neeley noted that, “Justice Anthony Kennedy’s opinion in the 2008 Rapanos v. United States U.S. Supreme Court case essentially established a significant nexus standard.”

“The plaintiffs in the new lawsuit argue the agencies have the science to support the significant nexus standard,” the DTN article said; adding that, “The new lawsuit filed in the U.S. District Court for the Southern District of New York argues the agencies should be required to apply the significant nexus test instead of reverting back to the 1986 rule, which predates the Supreme Court cases.”

“The latest lawsuit is the third such action filed since the agencies finalized the new WOTUS rule that temporarily uses the 1986 definition of waters,” Mr. Neeley said.

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