Environmental -- active

American Farm Bureau Federation v. EPA   (S.D. Texas)

Challenging Waters of the United States regulation

The NAM and 13 other organizations filed suit against the EPA and the U.S. Army Corps of Engineers challenging a new rule that expands the jurisdiction of those agencies over "Waters of the United States." The EPA's jurisdiction is limited by the Clean Water Act to discharges of pollutants to "navigable waters," meaning waters of the United States including the territorial seas. The EPA has attempted to define the extent of this jurisdiction before, leading to litigation that wound up in the Supreme Court, without a clear majority agreeing on how this issue should be resolved. The agency's latest attempt was published in the Federal Register on June 29, 2015, and again expands the amount of land nationwide which the EPA claims the power to regulate.

The rule exerts jurisdiction over a staggering range of dry land and water features -- large and small; permanent, intermittent, or ephemeral; flowing or stagnant; natural or manmade; and interstate or intrastate. Our complaint is that the rule "bears no connection to the statutory text, far exceeds the authority granted by the Commerce Clause, and violates the individual rights protected by the Due Process Clause."

The rule will require EPA permits, or permits from state agencies operating under the authority of the Clean Water Act, for any unauthorized "discharges" of a pollutant somewhere that qualifies as a water of the United States. The definitions are complex and vague, and often require case-by-case determinations by the agencies. Manufacturers that own property that might constitute covered U.S. waters will have to try to determine whether any activities they want to conduct could be subject to the rule, as criminal penalties for negligent violations are up to $25,000 per day, and up to a year in prison per violation. The EPA may also impose civil penalties of up to $37,500 per discharge, per day, per offense. Manufacturers are also subject to citizen suits. These punitive provisions discourage the reasonable and productive use of improvements to land and water features.

Included in our complaint are the following additional problems:

(1) the public had no opportunity to comment on the final scientific conclusions in a study that provided much of the technical basis for the rule,

(2) the agencies failed to meaningfully consider direct economic costs and other financial burdens of the rule, and conducted a flawed cost-benefit analysis, and

(3) the rule expands the agencies' jurisdiction beyond limits under the Commerce Clause and the Clean Water Act.

This rule has also been challenged in various federal appeals courts, because some parties believe that these courts are the proper forum for challenging it. Those appeals have been consolidated into the Sixth Circuit, which issued a nationwide stay pending resolution of the legal issues, and ruled that it has jurisdiction. For details, click here. Subsequently, the EPA filed a notice of intent to move to dismiss based on the Sixth Circuit ruling.

On May 13, 2016, we filed an opposition to defendant's motion to dismiss. The Sixth Circuit's jurisdictional holding has no binding effect outside that court's own territory and that fractured holding supports denying the motion to dismiss, not granting it.

Related Documents:
NAM Opposition to Motion to Dismiss  (May 13, 2016)
NAM Complaint  (July 2, 2015)
Press release  (July 2, 2015)


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