Farm, energy and construction groups sue to block new federal definition of 'waters of the United States'

As expected, the Biden administration's new definition of "waters of the United States" under the Clean Water Act is being challenged in a federal court.

Farm, energy and construction groups filed suit in the Galveston division of the Southern District of Texas, likely a favorable forum for their argument that the new definition will apply to "staggering range of dry-land and water features—whether large or small; permanent, intermittent, or ephemeral; flowing or stagnant; natural or manmade; interstate or intrastate; and no matter how remote from or lacking in a physical connection to actual navigable waters." The suit claims "Plaintiffs’ members will constantly be at risk that any sometimes-wet feature on their property will be deemed WOTUS."

The suit was filed by the American Farm Bureau Federation its Texas and Matagorda County affiliates, the American Petroleum Institute, the American Road and Transportation Builders Association, Associated General Contractors of America, Leading Builders of America, the National Association of Home Builders, the National Association of Realtors, the National Cattlemen’s Beef Association, the National Corn Growers Association, the National Mining Association, the National Multifamily Housing Council, the National Pork Producers Council, the National Stone, Sand and Gravel Association, the Public Lands Council, and the U.S. Poultry and Egg Association.

The suit notes that the U.S. Supreme Court recently heard oral arguments in a case that could determine what wetlands are “waters of the United States,” and complains that the Environmental Protection Agency and the Army Corps of Engineers issued the new definition "rather than await the decision in that case, which will almost certainly provide additional guidance as to the meaning of WOTUS."