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Farmers, Ranchers Dispute Legal Limits of Revamped Water Rule

May 11, 2020, 10:00 AM

Cattlemen in the West are gearing up for a legal battle over the Trump administration’s revamped water jurisdiction rule, even as a national trade association of farmers that touts itself as the “unified voice of agriculture” supports the change.

Ranchers in New Mexico, Oregon, and Washington state want no federal control of any body of water that crosses their lands. They’ve asked the Pacific Legal Foundation, a conservative nonprofit legal firm, to sue on their behalf to fix what they see as lingering “federal overreach” problems with the most recent definition of the waters of the U.S., or WOTUS.

The cattlemen claim the new WOTUS definition, released last month, will require them to spend thousands of dollars in seeking Clean Water Act permits if they plow through or dredge water bodies and wetlands that have been deemed federally protected.

“That’s not just a feasible way for farmers and ranchers to use their land,” said PLF senior attorney Anthony L. Francois, who is representing the cattlemen.

In contrast, the American Farm Bureau Federation, which has chapters in nearly all states, supports the Navigable Waters Protection Rule (RIN: 2040-AF75) that the Environmental Protection Agency and the U.S. Army Corps of Engineers jointly published April 21.

The 2020 rule “draws a reasonable and lawful line between federal and state jurisdiction,” Ellen Steen, the Farm Bureau’s general counsel and secretary, said in an email.

‘Going for Broke’

Government, industry groups, and environmental lawyers have fought for years over the proper definition of WOTUS—the types of wetlands and waters that fall under Clean Water Act protection. Any activity that involves discharging pollutants, or dredging and filling a federally protected water or wetland, requires an often costly Clean Water Act permit.

The Farm Bureau became the poster child of opposition to the Obama administration’s 2015 WOTUS rule, forming an advocacy coalition with manufacturers, miners, and builders to challenge the rule in the courts and through the rulemaking process.

The bureau hasn’t yet decided whether it would intervene on behalf of the federal government fend off the lawsuits from the Pacific Legal Foundation, Steen said.

The farm bureau may be content to settle for “a political and legal calculation over what would win in court,” said Dave Owen, a UC Hastings College of Law professor. In contrast, the cattlemen and and ranchers—who had also opposed the Obama-era rule—"are going for broke” by using the courts to try to eliminate all Clean Water Act protections for intermittent streams and adjoining wetlands, Owen said.

For instance, in their complaints, the ranchers argue that the 2020 rule can’t cover water bodies where boats and ships can’t travel. They want to exclude from the rule all intermittent streams; all lakes, ponds, and streams that have the slightest surface connection to other federally regulated waters; and wetlands that don’t directly abut federally regulated navigable bodies of water like the Columbia River that straddles the border between Oregon and Washington state.

“We challenge the legal authority of the EPA to regulate ponds and lakes under the Clean Water Act if you cannot travel with commercial vessels from the lake or pond eventually to the ocean,” Francois said.

‘A Few Mistakes’

The New Mexico Cattle Growers’ Association argued in an April 27 complaint that the new water rule violates the Clean Water Act, the Constitution, and U.S. Supreme Court precedent. It does so by defining water bodies that have been or can be used “in interstate or foreign commerce” as subject to Clean Water Act jurisdiction, even if they aren’t used to transport goods.

Such a definition, the groups allege in New Mexico Cattle Growers’ Association v. EPA, could extend to waters used for livestock and irrigation, which is beyond what the law or the Constitution allows.

Similar claims were brought up in Oregon Cattlemen’s Ass’n. v. EPA, filed May 1, and in Washington Cattlemen’s Ass’n. v. EPA, filed May 4. Both complaints build on an existing lawsuit that challenged earlier interpretations of the scope of federal water protections.

“Our suits don’t prevent the 2020 rule from going into effect,” PLF senior attorney Anthony L. Francois said. “What we are asking for is a very specific sentence that that rule be enjoined for those particular pieces where it exceeds the agency’s authority.”

The current rule, for example, will still require farmers to seek permits to plow across intermittent drainages—or intermittent streams through which water drains—and install erosion controls, Francois said.

“We want the courts to deal with a few mistakes that the agencies made in an otherwise overall pretty positive set of reforms to the Obama regulation,” he said.

‘Legally Defensible’

The Farm Bureau’s top priority was ensuring that any rewrite of the 2015 rule excluded ephemeral streams, or streams that only flow when snow melts or when it rains. “And we got that,” Steen said.

The Farm Bureau declined to comment on the Pacific Legal Foundation lawsuits, except to say that the 2020 rule is lawful.

“The Trump administration chose to go with a rule that was legally defensible,” Don Parrish, the Farm Bureau’s senior director for regulatory relations, said in an interview.

Steen said the bureau “will be watching very carefully how the rule is implemented” to ensure landowners’ rights are protected.

The bureau also hasn’t decided whether it would join against challenges to the Trump water rule mounted by separate coalitions of states and environmental groups, who argue the Trump water rule is too narrow and leaves out protections for key water bodies that are critical to maintaining water quality.

“AFBF will look at each case individually and decide what, if any, role to play,” Steen said.

The Farm Bureau is in no position to litigate against the 2020 water rule, given its strong public support to the Trump-era revision, said Neal McAliley, an environmental attorney with Carlton Fields P.A. “It would undercut their standing with the EPA,” he said.

Aligned Philosophy

But the Farm Bureau and its members could benefit if the Pacific Legal Foundation prevails, observers say.

“They would love to get the Clean Water Act interpretation that takes away protections from all intermittent streams,” James Goodwin, senior policy analyst with the nonprofit Center for Progressive Reform.

The Farm Bureau’s legal and regulatory fight against the Obama-era rules paved the way for a more narrow Trump-era regulatory reach. The Pacific Legal Foundation could continue that fight, even if the bureau can’t, McAliley said.

“If the Farm Bureau moved the ball 60 yards down the field, then it’s time for the Pacific Legal Foundation to pick up the ball and move it to the goal post,” he said.

In other cases involving the EPA and Army Corps of Engineers, the PLF has been able to create a split among federal appeals courts, with the goal of getting a case to the U.S. Supreme Court, McAliley said.

He said the group prevailed in having the justices hear U.S. Army Corps of Engineers v. Hawkes in 2016, Sackett v. EPA in 2012, and Rapanos v. U.S. in 2006.

“If the PLF can win in one circuit and the environmental groups prevail in another, then bingo, the case goes to the Supreme Court,” McAliley said.

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Rebecca Baker at rbaker@bloomberglaw.com; Anna Yukhananov at ayukhananov@bloombergenvironment.com

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