WOTUS Lawsuit and Potential Congressional Action
Everyone may be tired of talking about the new rule promulgated by the Environmental Protection Agency (EPA) and Corps of Engineers to define the meaning of “waters of the United States” (WOTUS) under the Clean Water Act, but the drama surrounding this rule is far from over. Currently, there are lawsuits against the EPA across the nation challenging the new rule.
In January, the United States Supreme Court announced that it will hear arguments this term on the jurisdictional issue—meaning which is the proper venue for the legal challenge to go forward—but not on the merits of the case. After the Supreme Court decides the venue issue, the case will proceed with the litigation process.
Meanwhile, there could be action in Washington, DC that could address the new rule as well. It is possible that the Trump administration could withdraw the new rule and go back to the drawing board, or Congress could pass a resolution nullifying the new rule (like it did earlier this year, but which was vetoed by President Obama). Stay tuned, WOTUS will continue to be in the news this year.
Duarte Decision is On Appeal
Another case involving the Clean Water Act should be on agricultural law enthusiasts’ radar. The Duarte Nursery v. US Army Corps of Engineers case is making its way through the federal courts in California. In that case, a farmer wanted to plow up grassland and sow wheat.
The Corps of Engineers determined that because there were vernal pools and swales on the property, it was a “water of the United States” and the landowner needed a federal permit in order to plow the ground. The trial court sided with the Corps of Engineers. The case is now pending on appeal at the United States Court of Appeals for the Ninth Circuit. It is a concerning example of how broadly the government can claim their jurisdiction is under the Clean Water Act and could have important ramifications for landowners.
Challenge to Idaho and Utah “Ag Gag” Statutes Pending on Appeal
In the United States Courts of Appeal for the Ninth and Tenth Circuit, constitutional challenges to “ag gag” statutes passed in Idaho and Utah are pending. These statutes, which essentially prohibit filming or recording of agricultural operations without permission from the owner, were challenged by animal rights groups as violating their constitutional rights. Challengers claim that the laws violate their free speech rights, while proponents insist the laws are important to protect their clients’ property rights.
Ruling Limiting Endangered Species Act Scope is On Appeal
Also before the United States Court of Appeals for the Tenth Circuit is a Utah case in which a prairie dog found itself in the midst of controversy over the Endangered Species Act. In that case, landowners challenge the listing of the Utah Prairie Dog—a purely intra-state species located only within the state—under the Endangered Species Act.
The landowners claim that this exceeds the scope of power given under the Endangered Species Act because the Act is based upon Congress’ interstate commerce power and this animal is neither found in commerce or an interstate species. The trial court sided with the landowners, but the Fish and Wildlife Service appealed the decision.