American Oil and Gas Reporter - August 2015 - 157

expands the number of activities requiring
federal permit applications to secure state
certification.

North Dakota Filing
The two groups' legal filings contain
similar arguments against the proposed
water rule. The states led by North Dakota
also argue that EPA and the Corps failed
to consult meaningfully with the states
as they developed the rule, which violated
a 1999 executive order as well as the
CWA itself.
"In failing to consult with the states,
the agencies did not take into account
the unique ecological, geological, and
hydrological differences among all states,
and have ignored the scientific expertise
of the state regulators charged with protecting state resources under both federal
and state law. In fact, several of the states
have unique hydrological features that
no other areas of the country enjoy, including, for example, the extensive prairie
pothole regions in North Dakota, South
Dakota and Montana that are now, for
the first time, identified as jurisdictional
in the final rule," the lawsuit says.
The federal agencies should withdraw
the final rule because it is not the "logical
outgrowth" of their proposed rule, the
North Dakota documents state. Under
that doctrine, federal regulations say a
final logical outgrowth is invalid because
it doesn't provide adequate notice or opportunity to comment if a rule's substance
changes, North Dakota explains.
According to court documents, the
proposed WOTUS rule did not give interested parties sufficient notice with respect to the final definitions of "adjacent"
or "neighboring" waters or "tributaries,"
and also failed to discuss what factors
would be considered in the "significant
nexus" analysis. In addition, the North
Dakota lawsuit says, "Interested parties
could not have anticipated the new jurisdictional categories or processes for evaluating jurisdiction, and therefore could
not have reasonably commented on those
new provisions in the final rule during
the notice and comment period on the
proposed rule."
In one example cited in the lawsuit,
the proposed rule defined adjacency based
on the location of waters within a riparian
area or flood plain, or a hydrologic connection with a primary water, impoundment or tributary. In contrast, the final
rule includes waters within 100 feet of a
primary water, impoundment or tributary;
within the 100-year flood plain and within
1,500 feet of the ordinary high-water
mark or a primary water, impoundment
or tributary; or within 1,500 feet of the
high-tide line.

Business Groups Sue To Block WOTUS Rule

TULSA-Several business groups, including the U.S. Chamber of Commerce
and National Federation of Independent
Business, filed suit July 13 against the
U.S. Environmental Protection Agency
and Army Corps of Engineers seeking
to overturn the waters of the United
States rule. The groups filed the lawsuit
in the U.S. District Court for the Northern
District of Oklahoma in Tulsa.
Also participating in the lawsuit are
the State Chamber of Oklahoma, Tulsa
Regional Chamber and the Portland
Cement Association.
The lawsuit alleges that the WOTUS
rule disrupts the careful balance Congress
established in the Clean Water Act,
which gives the two agencies authority
to regulate navigable waters, but specifically preserves the primary role of the
states in planning the development and
use of land and water resources, the
Chamber of Commerce says. The suit
also alleges the agencies failed to comply
with their statutory obligation to assess

Significant Nexus
The lawsuit filed by Texas, Mississippi
and Louisiana argues federal reliance on
the "significant nexus" standard is flawed.
The filing points out that the final rule's
preamble states an important element of
the agencies' CWA interpretation involves
the standard as refined by Justice Anthony
Kennedy in Rapanos.
In that 2006 case involving wetlands in
Michigan that developers had filled in
without federal permits, two lower courts
held the act violated the CWA because the
wetlands were adjacent to waters of the
United States. Five Supreme Court justices
ruled that the lower courts applied an incorrect standard to determine whether the
wetlands were covered by the Clean Water
Act and ordered the U.S. Court of Appeals
for the 6th Circuit Court to reconsider its
decision (AOGR, July 2006, pg. 22).
The Supreme Court split over other
issues in the case, according to media reports, with four justices seeking a more
restrictive reading of the term "navigable
waters." Kennedy did not fully join those
justices or the four who argued for a
more liberal reading. Instead, in an opinion
concurring with the restrictive interpretation, he wrote that the lower courts
correctly recognized that a water or wetland was a navigable water if it possessed
a "significant nexus" to waters that were
navigable or could be made so, published
reports say.

the economic harm that industries and
small businesses will suffer because of
the regulation.
When EPA adopted the WOTUS
rule, it ignored flaws identified by the
business community, farmers and agricultural leaders, manufacturers and other
stakeholders, charges U.S. Chamber
Senior Vice President of Environment,
Technology and Regulatory Affairs
William Kovacs.
"By redefining what constitutes a
'water of the United States,' the agency
sidestepped the Clean Water Act, Administrative Procedures Act, and the
U.S. Constitution," Kovacs says. "EPA's
regulatory overreach harms American
enterprise by creating a vague rule to
be implemented within a technically
complex, expensive and time-consuming
permitting process that will cause unnecessary expense and delay, and force
many of our members to walk away
from valuable business ventures," he
says.
❒
According to Kennedy's interpretation,
wetlands have the requisite nexus and
thus are navigable waters if they, alone
or in combination with similarly situated
lands in the region, significantly affect
the chemical, physical and biological integrity of covered waters determined to
be navigable.
EPA and the Corps are wrong to rely
so heavily on that one opinion, the Texasled plaintiffs contend.
"While the federal agencies will undoubtedly argue that relying on Justice
Kennedy's concurrence is proper in a
fractured opinion such as this, that opinion
does not grant the federal agencies permission to exceed their authority under
the Clean Water Act and the Constitution,"
the filing document states.
It adds that the agencies would have
been more prudent to rely on the Rapanos
plurality's holding that the phrase "the
waters of the United States" includes
only those "relatively permanent, standing
or continuously flowing bodies of water
'forming geographic features' that are
described in ordinary parlance as 'streams
. . . oceans, rivers (and) lakes.'"
❒

Coming In September

Complete coverage of the Independent Petroleum Association of
New Mexico's annual meeting, Aug.
5-7 in Albuquerque, N.M.
AUGUST 2015 157

American Oil and Gas Reporter - August 2015

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