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Litigation Deluge Expected After Waters Rule Repeal (2)

Oct. 22, 2019, 5:24 PMUpdated: Oct. 23, 2019, 2:23 PM

The Trump administration’s repeal of a landmark Obama-era regulation on water pollution is official, and now the legal challenges are set to begin.

The bulk of the litigation is expected to come from environmental groups and Democrat-led states accusing the Environmental Protection Agency and the Army Corps of Engineers of improperly narrowing the scope of the Clean Water Act.

But the first case filed Oct. 22 comes from the right-leaning Pacific Legal Foundation. In a lawsuit filed on behalf of the New Mexico Cattle Growers’ Association in the U.S. District Court for the District of New Mexico, the group is taking aim at the 1986 interpretation of waters jurisdiction that comes back into effect because of the Trump administration’s repeal of the Obama-era Clean Water Rule.

The Obama action, also called the Waters of the United States, or WOTUS, rule, set a broad definition of which water bodies are eligible for federal anti-pollution protections—and which aren’t. It was fiercely opposed by farmers, ranchers, and many other businesses who worried this broad definition would require them spend money to obtain permits for small streams that run through their land.

The Trump administration announced its final decision to roll back the Obama-era protections weeks ago, but the repeal didn’t become official until Oct. 22, when it was published in the Federal Register. The previous administration’s WOTUS definitions are set to be formally scrapped in December.

The EPA and the Army Corps of Engineers plan to issue a replacement rule that puts forth a new interpretation of “waters of the U.S.” early next year. In the meantime, the law of the land reverts to the 1986 regulation.

Pacific Legal Foundation attorney Anthony L. Francois said the courts need to clarify fundamental questions about the scope of the law. The legal group and its clients say the federal government shouldn’t interpret the Clean Water Act to apply to streams that don’t flow continuously.

“While there’s various iterations of the regulations, they really all have the same problem, that they overstate the scope of what the Clean Water Act actually regulates,” he told Bloomberg Environment.

The Pacific Legal Foundation is planning to seek a preliminary injunction that would block the government from applying the law to ephemeral and intermittent waterways.

The EPA declined to comment, citing the pending litigation.

The case is New Mexico Cattle Growers’ Ass’n v. EPA, D.N.M., No. 1:19-cv-00988, 10/22/19.

(Elaborates on timing in fifth paragraph. )

To contact the reporters on this story: Ellen M. Gilmer in Washington at egilmer@bloombergenvironment.com; David Schultz in Washington at dschultz@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Renee Schoof at rschoof@bloombergenvironment.com

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