Welte: The WOTUS saga

Last week, there was big news in the ongoing challenge to the federal government's Waters of the U.S. Rule. This saga is of great importance to farmers and agriculturalists nationwide.

Peter Welte

Last week, there was big news in the ongoing challenge to the federal government’s Waters of the U.S. Rule. This saga is of great importance to farmers and agriculturalists nationwide.

The Environmental Protection Agency, through the federal law known as The Clean Water Act, has recently passed rules that greatly expand the agency’s already broad ability to regulate farmers. The new rule broadens the definition of “waters of the U.S.,” and permits EPA to regulate farmers who attempt merely minimal drainage of even small potholes, because EPA would deem such action to be subject to its jurisdiction as drainage that affects the waters of the U.S.
This is just absurd. Farmers of both political stripes are generally weary of EPA’s hostile posture to farmers’ attempts to do their jobs. That is just one of the reasons the ongoing WOTUS litigation is in the headlines.
There is history here, as well. “Waters of the U.S.” is actually the evolution of what the federal government used to call “navigable waters.” Until the mid 1970s, the federal government’s definition of navigable waters meant just that: waters that could actually be navigated. But in 1975, the Army Corps of Engineers expanded that definition to include streams, wetlands, playas and other natural ponds. Although farmers didn’t see it coming at the time, this was the beginning of the federal government’s power grab over regulation of farmers and the way they kept their fields drained and farmable.
Since that time, EPA has fought efforts of farmers - and some state governments - to check EPA’s authority, and this has never been more true than in 2015. Flash forward to the present cases.
In August, federal district court judge Ralph Erickson issued a preliminary injunction blocking WOTUS from being enforced in North Dakota and the 12 other states that had joined the lawsuit. In his order, the judge determined the states were likely to succeed on the merits. As discussed before in this column, this action by the federal court was highly unusual, and it bodes well for farmers. There were actually 14 pending WOTUS actions, all brought in federal court, and all brought by litigants - including many states - that oppose the federal government’s power grab. Rather than take the states’ lead and back down, the federal government has decided to fight to retain its authority.
North Dakota, with Attorney General Wayne Stenehjem in front, has led the charge in this lawsuit. In a recent news release, Stenehjem announced another victory for the farmers in this ongoing case. The federal government had asked a court panel to transfer and centralize all pending WOTUS cases to the federal district court in the District of Columbia; not a hotbed of agricultural activity, but certainly the “home field” of EPA. North Dakota opposed the request, arguing its case was in a unique procedural position because it is the only case with a preliminary injunction and the federal agencies had not met their burden to justify transfer.
A hearing was held on Oct. 1 in New York City. In its order, the panel agreed with North Dakota, holding that “centralization will not serve the convenience of the parties and witnesses or further the just and efficient conduct of this litigation.” As a result, each of the 14 cases filed in various federal district courts across the country will proceed independently.
So what does all this mean? It’s hard to say, but it isn’t bad news, to be sure. Any litigation involving a government entity is more of a marathon than a sprint. But the outlook is certainly rosier for farmers who want to farm their lands with less interference from the federal government. What this means in the long term remains to be seen. Stay tuned.
Editor’s note: Welte is an attorney with the Vogel Law Firm in Grand Forks, N.D., and a small grains farmer in Grand Forks County.

Related Topics: NORTH DAKOTA
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