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WOTUS Merits Argued in Georgia Court
Tuesday, October 16, 2018 7:34AM CDT
By Todd Neeley
DTN Staff Reporter

OMAHA (DTN) -- The future of the 2015 waters of the United States, or WOTUS, rule may be decided in a district court in Georgia, as the American Farm Bureau Federation and supporters of the Obama-era rule have asked a court there to decide on its merits.

For the past three years, the WOTUS rule has been hung up by dozens of lawsuits and legal procedures across the country, but now a court has been asked to rule on the constitutionality of WOTUS.

This summer, the AFBF filed a motion for summary judgement, asking the U.S. District Court for the Southern District of Georgia to invalidate the rule, claiming it was unconstitutional and violated the administrative procedures act.

On behalf of the National Wildlife Federation and One Hundred Miles, the Southern Environmental Law Center filed a motion for summary judgement this week, arguing in favor of the 2015 rule based on the science used in drafting the rule.

A motion for summary judgement asks a court to issue a ruling based on agreed-upon facts in a case.

"No one seriously disputes that Justice (Anthony) Kennedy held that waters are covered under the Clean Water Act if they have a 'significant nexus' to primary waters," the latest motion said.

"The question, then, is whether the agencies had a sufficient scientific basis for identifying waters under the Clean Water Rule as having a 'significant nexus' -- as defined by Justice Kennedy -- to primary waters. The agencies' position that they did is supported by more than 1,200 scientific publications and confirmed by 27 of the nation's top scientists, among other things."

Earlier this summer, the AFBF asked the Georgia court to throw out the rule. The group argued the rule expands federal authority over waters beyond what the Clean Water Act allows and is unconstitutional. In addition, AFBF argues EPA violated the Administrative Procedures Act by not reopening a public comment period after making "fundamental changes to the proposed rule and withheld the key scientific report on which the rule rested until after the comment period closed."

After the U.S. Supreme Court ruled legal challenges to the rule belong at the district court level, district court cases previously on hold resumed. A national stay on the rule expired when the Supreme Court rendered its decision.

A number of court and government actions have been taken this year on the WOTUS rule, including:

-- In January 2018, the EPA finalized a rule to delay the 2015 rule by two years to allow for an agency rewrite.

-- In February, attorneys general in 10 states sued EPA alleging the rule to delay was unlawful.

-- Also in February, the AFBF and other agriculture groups asked a court in Texas for a national preliminary injunction to prevent the 2015 rule from taking effect.

-- In June, the same district court in Georgia issued a preliminary injunction against WOTUS in 11 states.

-- In August, a federal judge in the U.S. District Court for the District of South Carolina ruled EPA did not follow the Administrative Procedures Act in finalizing its rule to delay the 2015 WOTUS for two years. As a result, the rule took effect in 26 states. That meant the rule was on hold in 24 states.

-- Also in August, the AFBF asked an appeals court in Virginia to stay the ruling in South Carolina.

-- At the end of August, the AFBF asked the Georgia court to issue a national injunction to prevent the 2015 rule from taking effect.

-- After a series of additional court actions, the rule now is in effect in 22 states and on hold in 28.

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN


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