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Fed Court Allows Ag WOTUS Intervention
By Todd Neeley
Thursday, March 23, 2023 9:04AM CDT

LINCOLN, Neb. (DTN) -- Over the objection of EPA attorneys, a federal judge on Wednesday granted agriculture groups' motion to intervene in an ongoing lawsuit filed by 24 states challenging the Biden administration's waters of the U.S. rule.

Though the WOTUS rule took effect on March 20, the U.S. District Court for the District of North Dakota also is considering a motion filed by the states for a preliminary injunction.

Earlier this week the U.S. District Court for the Southern District of Texas granted a preliminary injunction to the states of Texas and Idaho, while denying a motion to intervene and a motion for a national injunction filed by ag groups including the American Farm Bureau Federation.

The federal judge in North Dakota was much more lenient in granting ag groups' motion to intervene.

"In the Southern District of Texas litigation, as in this case, the defendants asserted no preliminary injunction should issue but, alternatively, asserted any injunctive relief should be geographically limited to the plaintiff states," Judge Alice R. Senechal said in the court's decision.

"Because defendants oppose nationwide injunctive relief, movants contend the only avenue open to organizations such as theirs with nationwide interests is to file separate actions covering the entire nation. And they point to litigation over the 2015 WOTUS rule -- where several courts enjoyed enforcement in only states that were parties to the litigation -- as 'instructive.' In fact, the injunction recently issued in the Southern District of Texas applies only in the two states that are plaintiffs in that case."

The court granted the ag groups' motion in part because otherwise they would face the possibility of filing separate lawsuits in the each of the 24 states.

States filing the lawsuit include Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia and Wyoming. Their lawsuit alleges EPA and the U.S. Army Corps of Engineers have "toppled the cooperative federalism regime" by implementing a rule that is "overbroad and hopelessly vague."

The interest groups allowed to intervene include the American Farm Bureau Federation, American Petroleum Institute, National Cattlemen's Beef Association, National Corn Growers Association, National Pork Producers Council, Public Lands Council, U.S. Poultry and Egg Association as well as state-level ag groups and construction interest groups.

"Keeping in mind the premise that any doubts should be resolved in favor of intervention, in this court's view, movants have established that their interests are not adequately protected by the existing parties," the court said.

The 24 states have asked the federal court in North Dakota to vacate the Biden administration's iteration of the WOTUS rule and to find it unlawful, and to prevent the agencies from enforcing the rule.

Read more on DTN:

"Aggies Join 24-State Lawsuit vs. WOTUS," https://www.dtnpf.com/…

"EPA Opposes Ag Intervention in WOTUS," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @DTNeeley

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