Nebraska joins other states to fight new WOTUS rule

February 16, 2023 – Nebraska on Thursday joined 24 other states in a lawsuit against the Biden administration’s new rule defining so-called Waters of the United States, or WOTUS.

The multi-state coalition said the U.S. Environmental Protection Agency and Army Corps of Engineers rushed to publish the new rule, even though the Supreme Court is expected to issue a key decision on the scope of WOTUS in a few weeks.

Nebraska Attorney General Mike Hilgers, in a statement announcing Nebraska’s role in the lawsuit, said the new rule would detrimentally affect farmers who may need to get permission from the EPA and Corps of Engineers to fill or dredge wetlands or waterways, depending on whether those features fall under the federal government’s purview.

Felt by farmers, homebuilders

Likewise, his statement said, developers, homebuilders, miners and other property owners face implications in making changes or improvements to their land.

“If the final rule is left in place, then ranchers, farmers, miners, homebuilders, and other landowners across the country will struggle to undertake even the simplest of activities on their own property without fear of drawing the ire of the federal government,” according to the coalition’s lawsuit.

It continues: “Landowning Americans of all stripes will thus be left with a choice: fight their way through an expensive and lengthy administrative process to obtain complex jurisdictional determination and permits or face substantial civil and criminal penalties.”

The final rule followed a decades-long process to define the geographical reach and authority of the EPA and Corps of Engineers in regulating streams, wetlands and other water bodies under the Clean Water Act.

Extended battle

The Obama administration in 2015 sought to clarify what waters on private properties the EPA and Corps of Engineers could regulate. The Trump administration replaced the WOTUS rule with the Navigable Waters Protection Rule, which was finalized in 2020 and which significantly narrowed what could be included.

President Biden expanded the rule again.

Notably, Hilgers’ statement said, the new rule redefines “navigable waters” to include ponds, certain streams, ditches and other bodies of water under the Clean Water Act, as determined by the EPA and the Corps of Engineers.

Others in the coalition are Alabama, Alaska, Arkansas, Florida, Georgia, Iowa, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia and Wyoming.

The states have announced a motion for preliminary injunction to stop the Biden Administration’s new WOTUS rule while it’s under litigation.

By Cindy Gonzalez, Nebraska Examiner
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