One of the first challenges brought against the Trump administration’s Clean Water Act rule redefining federal jurisdiction over the nation’s waters was dismissed by a federal judge in Oregon late Thursday.
The Oregon Cattlemen’s Association had sued the EPA and the U.S. Army Corps of Engineers in May for bringing non-navigable, small streams and wetlands under Clean Water Act protection in the Navigable Waters Protection Rule.
Judge Michael W. Mosman of the U.S. District Court for District of Oregon, ruling from the bench on a preliminary injunction sought against the water rule, dismissed the claims “due to lack of standing” without prejudice.
That means the cattlemen group can file an amended claim at a later date, said Earthjustice attorney Anna Sewell, who attended the virtual court proceeding on behalf of Columbia Riverkeeper, an intervenor in the case.
Mosman also formally denied the cattlemen’s preliminary injunction on lack of standing.
The EPA said the decision means the Navigable Waters Protection Rule will continue to be implemented in Oregon.
“We are pleased that the court has dismissed this challenge to the Navigable Waters Protection Rule,” Jonathan Brightbill, principal deputy assistant attorney general for the Justice Department’s Environment and Natural Resources Division, said in an email Friday.
‘Not Enough Evidence’
The court concluded “there was not enough evidence in the record that ranchers in Oregon are adversely affected by the Navigable Waters Protection Rule,” Anthony Francois, a Pacific Legal Foundation attorney representing the Oregon cattlemen and who attended the virtual court hearing, told Bloomberg Law.
Francois said the judge dismissed the case but allowed for it to be refiled with additional detail, after observing that the evidence probably could be supplied in the future.
“We will be consulting with our client about the next steps,” Francois wrote in a Thursday email, adding that the judge did not set a deadline for refiling the case.
As of Friday morning, the court hadn’t issued official notice of Mosman’s ruling from the bench. But the ruling also was confirmed by a source at the Environmental Protection Agency, who spoke on condition of anonymity.
The EPA said it developed the rule jointly with the Army Corps to “protect the navigable waters and their core tributary systems for the entire country while respecting our statutory authority.”
The two agencies remain confident that “the new rule provides much-needed regulatory certainty for farmers, landowners, and businesses—ending confusion that has existed for decades—while protecting the Nation’s navigable waters and striking an appropriate balance between federal and state authority over aquatic resources,” the EPA wrote in Friday’s email.
Defining ‘Navigable’ Waters
In its lawsuit, Oregon’s cattlemen had claimed the 2020 rule interpreted “navigable waters” in the Clean Water Act to include “an extensive catalog of ‘tributaries’ that are not navigable and which are not even ‘waters’ for most of every year, as well as non-navigable isolated lakes and ponds, and non-abutting wetlands.”
The group also alleged that nothing in the Clean Water Act definition of “navigable waters” extends the term to non-navigable waters of any sort that are upstream or isolated from waterways that are used exclusively to travel or conduct trade.
The ruling is the first dismissal of more than half a dozen challenges that the EPA and the Army Corps received over its rewrite of the Obama-era definition of waters of the U.S., or WOTUS.
To date, Colorado is the only plaintiff that has been successful in staying the Trump water rule from taking effect in the state. A California-led coalition was unsuccessful in preventing the rule from taking effect on June 22. In both instances, the challenges to the rule are continuing.
Earthjustice represented Columbia Riverkeeper in the lawsuit as an intervenor in the case against the claims made by the cattlemen.
“This is good news for the people of Oregon because the Court did not accept an attempt to strip Clean Water Act protections from all intermittent tributaries and many wetlands in the state, at a time when many Oregon waters have already lost Clean Water Act protections under the Trump Administration’s new rule,” Sewell said in an email Thursday.
Grilled Over Standing
During the hearing, Mosman grilled the Pacific Legal Foundation attorney about Oregon cattlemen’s standing to file the lawsuit, Sewell said.
“It’s pretty tricky because the Oregon cattlemen will have to prove the new water rule creates some kind of compliance burden for them,” Caitlin McCoy, a staff attorney with the Harvard Law School environment and energy law program, said Friday.
McCoy said the Oregon cattlemen will have to show that the land they ranch on currently has streams or wetlands will require permits under the current water rule for any kind of dredge and fill activity.
“That’s the harm they will suffer and that is the harm they have to show to get standing,” McCoy said.
More importantly, the other cattlemen and ranchers groups. which have filed nearly identical challenges in federal courts in Washington and New Mexico to that of the Oregon cattlemen, also will have to make sure “their complaints don’t fall into the same pitfalls that the judge in Oregon identified.”
The case is Oregon Cattlemen’s Association v. EPA, D. Or., No. 19-00564, bench ruling issued 8/6/20.