By Vicky Boyd

An August ruling by a South Carolina judge once again puts farmers, ranchers and landowners in 26 states – including California – in the crosshairs of the Army Corps of Engineers and the Waters of the United States.

At the same time, several groups, including the American Farm Bureau Federation, have pending court cases that challenge the legality of the 2015 WOTUS Rule. 

Although San Joaquin Farm Bureau Executive Director Bruce Blodgett said he hadn’t heard of the Army Corps taking any actions yet in California, “That’s our concern.”

“The court case puts the rule back in place, so right now the agency (Army Corps) could move forward,” he said.

Revising WOTUS would be up to the Trump administration. “They’re supposed to begin discussing a new rule at any point, but so far we’re still waiting on it – unfortunately,” Blodgett said. “We’re a long ways from (rewriting it). We need to get this administration moving.” Don Parrish, AFBF senior director of congressional relations, said he expected a proposed rule shortly and hopefully before year’s end. “They’ve been slower than we like, but we’re hopeful that they will be able to over the next year get it done,” he said.

Brad Goehring, a SJFB board member and Clements winegrape grower, has followed the WOTUS rewrite process, and he’s optimistic about a pending draft.

“We’ll see what’s in there,” he said. “I’m anticipating it should be pretty good because the EPA secretary was really on board with what our concerns were.”

Goehring, who has been personally affected by WOTUS, said he was a bit frustrated the bill wasn’t introduced when the Republicans controlled both the House and Senate.

“We’re not in as good a position as we were before the election,” he said. “The only way to do this is in the lame-duck Congress. It’s such a big topic and so detailed.

“Between now and the end of December or January, we have to get all of that deal agreed upon in the Senate. It’s a lot of work to do, but I think it’s worth a try.” 

A deluge of lawsuits 
At the heart of the concerns are revisions to the Clean Water Act by the Obama administration. The 423-page WOTUS definition, released by the Environmental Protection Agency and Army Corps in May 2015, included water bodies that had “significant nexus” to traditional navigable waterways.

The California Farm Bureau worked with AFBF and Geosyntec Consulting to develop an interactive state map that detailed areas WOTUS would affect. More than 95 percent of the state qualified. San Joaquin County fared even worse, with 97 percent falling under the new definition.

The release of WOTUS also opened a floodgate of legal challenges that have resulted in on-again, off-again stays for many states during the past three years.

In October 2015, the Sixth Circuit based in Cincinnati, Ohio, delayed the effective date of WOTUS pending judicial review. The stay was subsequently vacated in January 2018 after the Supreme Court concluded that appeals courts were not the proper venue for arguing WOTUS. Instead, federal district courts were the correct place.

Fearing WOTUS would go into effect once the Sixth Circuit ruling was vacated, a number of groups with pending suits against WOTUS filed motions for a nationwide stay in early February.

Following up on a campaign promise, the Trump administration began rule making in January on what was called the “Suspension Rule,” which delayed WOTUS implementation until 2020 to give the EPA and Army Corps time to rewrite it.

The public comment period was only 21 days, and commenters were only allowed to address the merits of the delay and not WOTUS itself. After EPA finalized its rule to delay WOTUS in February, several environmental groups and states sued the agency, arguing it had rushed the rulemaking process.

In August, South Carolina Federal District Court Judge David Norton ruled that the Trump administration had indeed violated the Administrative Procedure Act by limiting its consideration of comments to only the delay. Norton also ruled the administration had improperly abbreviated the length of the comment period.

His ruling, effective immediately, was nationwide. But 24 states were protected by previous court injunctions against the 2015 water rule – one court ruling in North Dakota covers 13 states, the other from Georgia covers 11 states. Among the 26 states not protected was California. 

AFBF intervenes
Two of the latest legal challenges were filed in mid-October by the state of Georgia with AFBF as an intervenor and the state of Texas. Both essentially seek nationwide relief and challenge the legality of WOTUS. The Georgia case also questions applying the WOTUS injunction selectively to only some states.

“The reason why we went back to the Georgia court and the South Texas court for a nationwide stay is we’re a nationwide group and we have members in all states,” Parrish said.

The South Texas court rejected the request for a preliminary injunction, although the judge said he’d speed up the briefing schedule. Parrish said he expected the judge will rule shortly after Jan. 1 whether WOTUS is illegal.

The Georgia judge also is expected to rule sometime after Jan. 1. In addition, a North Dakota court is mulling the legality of WOTUS. “All of them will decide one way or another whether the 2015 rule is legal,” Parrish said.

Regardless of the outcome, he said he expected appeals.

“When you lose, you’re going to see those cases appealed to the circuit court and ultimately appealed to the Supreme Court,” Parrish said.