Gary Baise Commentaries

Environmentalists want the Court to punish EPA. If the Court does so, a new chapter will be written for pesticide use.

Judge's Gavel

A federal district judge’s order would put farmers and ranchers on a regulatory rollercoaster.

For anyone who has some water running through their property: Here we go again.

On August 30, 2021, a federal district judge in Arizona “vacated” the Trump Administration’s Navigable Waters Protection Rule (NWPR) also known as WOTUS. What does that mean, exactly?

During the Trump administration the EPA and the U.S. Army Corps of Engineers (Corps) attempted to establish a new definition of Waters of the United States (WOTUS). An earlier blog I wrote indicated in September that the judge vacating Trump’s WOTUS definition was, in essence, a decision made by a judge who is a former public defender in Pima County, Arizona and a former assistant public defender.

Public reaction

On Oct. 25 a number of Arizona associations and the National Stone, Sand and Gravel Association, along with the Arizona Farm Bureau, said in a new court filing that the federal judge’s Order “…is erroneous and request that this Court stay that part of the Order vacating [Navigable Waters Protection Rule} pending appeal because (1) the court did not weigh the seriousness of the NWPR errors because it has not ruled on Plaintiffs’ challenges to the NWPR, which is a prerequisite for vacatur under the APA, and (2) vacatur of the NWPR and return to the pre-2015 regime pending issuance of yet another new rule by the Agencies will be unruly disruptive to the regulated community, and those harms far exceed any speculative injury asserted by Plaintiffs.”

What a mouthful.

Not only does the Court not understand the impact of changing the WOTUS rule, but the Court also fails to understand appropriate procedure. The judge in question, Rosemary Marquez, does not seem to understand the law involving water. The Court does not seem to understand that a return to the 2015 regime and then a new rule being promulgated subjects all businesses, farmers and ranchers “…to three different comprehensive regulatory regimes in a short amount of time.”

The business interests also attack the judge on her nationwide vacatur. The business intervenors claim the judge has provided relief “far beyond” what the Indian tribes have standing to obtain.

Decades long battle

The request by the Arizona intervenors is only the latest activity in a decades-long battle over what constitutes a Water of the United States. Appealing the Arizona judge’s Order to the Ninth Circuit is probably a fool’s errand, but it must be done. The National Pork Producers, the American Farm Bureau Federation, and others intend to either be intervenors or amici in this case. (Thank goodness!)

As pointed out earlier, this judge’s Order will put farmers, ranchers, and businesses on a regulatory rollercoaster. Supporting the business intervenors are other U.S. district court Orders which have concluded “…that vacatur of the NWPR is inappropriate.” This is from a September 16, 2021, California court.

The business intervenors believe they are likely to succeed on the merits and that Judge Marquez’s Order will result in irreparable injury to all who have some water running through their property. In addition, the business intervenors say in the 17-page opinion that the Court’s decision is “particularly problematic”.

As we all know, obtaining clarity whether waters on farms or ranches are jurisdictional waters is critical. A number of exhibits, which will be discussed in another blog, impacts transportation agencies, builders, and even environmental consultants. EPA and the Corps have not yet made clear what the Biden administration will determine is a Water of the United States. Ordering vacatur by this federal court judge not only creates uncertainty, but it also will constrain all productive actions involving land and water. Uncertainty is not good for business or progress.

Therefore, this Order by the federal district judge in Arizona will cause serious social and economic harm. These harms will be significant. This harm will be enormous compared to the harm that may be suffered by the Indian tribes. If there ever was a case where public interest supported a stay, this is it.