Following New Final Rule, Environmental Groups Consider WOTUS Lawsuit Options

DTN writer Todd Neeley reported last week that, “Environmental groups challenging EPA’s repeal of the 2015 waters of the United States, or WOTUS, rule have asked a federal court to stay the case.

“In court documents filed on Friday in the U.S. District Court for the District of South Carolina, the groups, led by the South Carolina Coastal Conservation League, said the EPA’s action in finalizing a new rule recently may change their legal strategy.

“‘The parties have further conferred and agree that the finalization of a revised definition of ‘waters of the United States’ may affect the issues and arguments at play in this litigation and other related legal challenges regarding the regulatory definition of ‘waters of the United States,” the groups said in their filing.”

Mr. Neeley stated that, “The lawsuit in South Carolina claims the federal agencies violated the Administrative Procedure Act in promulgating the repeal rule and merely reverting back to the 1986 rule instead of re-introducing it for public comment.

“The groups argue the 2015 WOTUS rule fixed a number of issues with the 1986 rule. That includes protecting waters that are not navigable in fact through the so-called ‘significant nexus’ test put forward by Supreme Court Justice Anthony Kennedy. That suggested the Clean Water Act protects smaller tributaries if they have some connection to larger navigable waters.

“A second lawsuit was filed by the New Mexico Cattle Growers Association in the U.S. District Court for the District of New Mexico, seeking protection from the 1986 WOTUS rule. That lawsuit continues.”

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