Water lawsuits update

Water lawsuits update

Get the latest info on where things stand with lawsuits involving WOTUS, Des Moines Water Works and the Clean Water Act.

The court system is alive and active with several cases that are pertinent to farmers as it relates to water. Here’s a rundown of some of the most important ones we’ve been watching including the Waters of the U.S. rule, Des Moines Waterworks lawsuit and the Hawkes ruling.

WOTUS: The 11th Circuit Court of Appeals has denied hearing a case filed by several states challenging the Environmental Protection Agency’s waters of the U.S. rule, saying that would be a “colossal waste of judicial resources” when litigation in the Sixth Circuit over the same rule is farther along in the process.

Get the latest on three water issues: Des Moines Water Works lawsuit, wetlands determinations and WOTUS. (Photo: Andrey Esin/Thinkstock)

Those opposed to the rule had asked for the district court to hear the lawsuit, as well as the court of appeals. Danielle Quist, senior counsel for public policy at the American Farm Bureau Federation, said district courts offer more judicial minds to evaluate and determine the merits in a particular case and they felt past precedent in the 11th circuit also supported that request.   Quist said the 1th district circuit court never made a decision on whether or not the district court has jurisdiction, but instead “punted” the decision to be made only by the 6th circuit.

On June 29, 2015, the EPA and the Army Corps of Engineers jointly promulgated the Clean Water Rule. The next day, attorney generals for Georgia, West Virginia, Alabama, Florida, Kansas, Kentucky, South Carolina, Utah, Wisconsin, North Carolina and Indiana filed a complaint in the District Court for the Southern District of Georgia asserting that the rule is invalid and asking that it be vacated.

The court denied the motion on Aug. 27, 2015, concluding that the courts of appeals have exclusive original jurisdiction over challenges to the rule. The states appealed that denial of preliminary injunctive relief.

The petition was transferred to the Sixth Court of Appeals where it was consolidated with similar petitions that had been filed. This court also was the one that issued the nationwide stay of the rule that currently still stands in place.

The ruling issued Aug. 16 stated that both cases in the 11th circuit court and the sixth court involve the same parties on each side, the same jurisdictional and merits issues and the same requested relief. “It would be a colossal waste of judicial resources for both this court and the Sixth Circuit to undertake to decide the same issues about the same rule presented by the same parties. “

Many other states filed similar actions in their respective district courts. To date, the only one that has not dismissed the case is Texas, Quist said. A case in North Dakota did not dismiss the case, but also would not be making a decision while it works its way through the 6th circuit. If there is a split decision between the district and appeals courts, it would have set up a venue fight that could have sent the final decision more quickly to the Supreme Court.

A briefing schedule has been filed for the 6th Circuit Court with merits briefings due no later than Sept. 30 from each of the three groups of petitioners: state petitioners, business and municipal petitioners and associational petitioners.

Des Moines Waterworks: The federal trial of Des Moines Water Works against farmers in three Iowa counties was previously scheduled to be held in August of this year; however, due to the court’s schedule and a desire to have issues pending in the Iowa Supreme Court resolved before trial, the case has been rescheduled for a three week trial, beginning June 26, 2017.

Des Moines Water Works filed a complaint in Federal District Court – Northern District of Iowa, on March 16, 2015, against the Boards of Supervisors of Buena Vista County, Calhoun County, and Sac County, in their capacities as trustees of 10 drainage districts, for the discharge of nitrate pollutants into the Raccoon River, a source of drinking water for 500,000 central Iowa customers.

DMWW attributes the nitrate levels in the Iowa’s waterways to agricultural land practices, with the largest contribution made by artificial subsurface drainage systems. They stated water monitoring by Des Moines Water Works at 72 sample sites in Buena Vista, Calhoun, and Sac Counties have shown nitrate levels as high as 39.2 mg/L in groundwater discharged by drainages districts into Iowa’s rivers – nearly four times the federally required Safe Drinking Water regulatory limit of 10 mg/L. Des Moines Water Works federal claim asks drainage districts obtain National Pollutant Discharge Elimination System (NPDES) permits, because they should be recognized and held accountable like every other point source contributor.

Wetlands determinations: On Wednesday, March 30, the U.S. Supreme Court heard oral arguments in the Pacific Legal Foundation (PLF) case, United States Army Corps of Engineers v. Hawkes Co., Inc, a potentially precedent-setting case that asks whether landowners may “go to court” if their property is labeled as “wetlands” subject to the federal Clean Water Act.

In May the court gave a unanimous decision stating that landowners may challenge the federal government whenever the Army Corps of Engineers tries improperly to regulate land with regulations designed to protect water.

Landowners have attempted many times to challenge Corps rulings known as jurisdictional determinations, but the government successfully argued that those determinations were not “final agency actions” and the lawsuits were dismissed. Now, when the Corps asserts jurisdiction over low spots that look more like land than water, it will have to do so with the knowledge that its jurisdictional determination can be tested in court.

After the federal government wrongly says a property contains wetlands subject to federal jurisdiction under the Clean Water Act, a landowner has only three alternatives.  He may abandon the property; embark on a costly and lengthy permit process that isn’t needed; or use the property and risk huge fines and even incarceration.

The groundbreaking decision accepted Pacific Legal Foundation’s arguments that landowners have a right to seek judicial review when their property is designated as wetlands subject to federal jurisdiction under the Clean Water Act.

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