AFBF urges court to dismiss challenge to WOTUS applicability date rule
July 2, 2018
The American Farm Bureau on June 29 asked a federal court to dismiss a legal challenge to the Environmental Protection Agency's "Applicability Date Rule." The rule would extend the effective date of the 2015 Waters of the United States Rule. EPA officials proposed the extension earlier this year to allow time for a full rewrite of the WOTUS rule, which unlawfully expanded the EPA's jurisdiction over waters previously regulated only by states and municipalities.
Farm Bureau urged the District Court for the Southern District of New York to confirm the legality of the Applicability Date Rule. Failing that, the brief urged the court to remand the rule to a lower court rather than vacate it entirely. Vacating the rule in its entirety would leave 26 states with the EPA's 2015 WOTUS Rule in effect, and 24 without.
"(T)his Court should exercise its equitable discretion to decline to vacate the Applicability Date Rule if it finds the rule legally deficient," the brief said. "Indeed, federal courts throughout the country frequently exercise their discretion to leave regulations in place during remand in circumstances like these, where a vacatur would be highly disruptive."
Attorneys for AFBF outlined the numerous ways in which the 2015 WOTUS Rule violates the law to support their request that the Applicability Date Rule stay in effect. The rule, the brief said, was unlawful because it effectively removed navigability as a test for whether or not a body of water should fall under federal jurisdiction. The 2015 WOTUS Rule also redefined terms of art such as "tributaries" and "adjacent" — words that are central to defining which waters fall under EPA jurisdiction. These definitions, too, are unlawful, the brief said.
"The WOTUS Rule additionally implicates the balance of power between the Federal Government and the States." the brief said. "The (Clean Water Act) reflects traditional views of the division of regulatory authority over waters. Navigable waters of the United States, which are part of or connected to channels of interstate commerce, are regulated by the Federal Government. At the same time, Congress 'recognize[d]' and sought to 'preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, [and] to plan the development and use…of land and water resources.' … The (2015) WOTUS Rule's sweeping assertion of federal jurisdiction upsets this balance between state and federal authority without any warrant in the text or history of the (Clean Water Act)."