Judge Tosses Ranchers’ Challenge to Weakened Clean Water Rules

PORTLAND, Ore. (CN) — Confusion on the Trump administration’s new rule reducing protections for streams has squashed a rancher’s claim that the Clean Water Act unfairly prohibits him from plowing his Baker County, Oregon, farm.

U.S. District Judge Michael Mosman dismissed the rancher’s lawsuit Thursday but left room for him to amend and refile his case. Curtis Martin, a member of Oregon Cattlemen’s Association, claimed the Clean Water Act unfairly prohibited him from plowing in riparian zones on his farm.

Oregon Cattlemen’s Association sued the U.S. Environmental Protection Agency in April 2019, claiming it too broadly defined the types of waters that cannot be polluted by including not only rivers and streams that are “navigable-in-fact,” but also those upstream from waters literally navigable by boat, as well as intermittent streams and isolated wetlands.

The 2015 rule expanded the Clean Water Act to cover about 60% of U.S. waterways. It was stalled for years by litigation in courts around the country. On April 21 this year — Earth Day — the EPA finalized a massive rollback of rules under the act that obliterated that expansion.

The Navigable Waters Protection Rule repealed the 2015 Clean Water Rule and redefined “navigable waters” to exclude groundwater, wetlands that lack a direct surface connection to navigable waters and ephemeral streams that don’t feed tributaries and are fed only by rainwater. In short, the new rules broadly observe Oregon Cattlemen’s criticism.

“What the agency did was to use more objective criteria, clearer lines that were tied to evidence of groundwater being affected by rain flow and those waters affected by rain flow are excluded,” the ranchers’ attorney Anthony Francois told Mosman on Thursday. “Now, many of those are picked up by state and local authority, so the net environmental affect is not that different from the baseline.”

Columbia Riverkeeper, an intervenor in the case, didn’t see it that way. In court documents, the environmental group argued that Oregon Cattlemen was taking the “extraordinary step” of asking the court to even further edit the already drastically reduced protections under the Clean Water Act.

Broad agreement between the ranching group and the Trump administration hasn’t stopped the administration’s regulations from getting in the ranchers’ way.

Still included for protection are “intermittent streams,” which flow seasonally. In court documents, Martin calls Gentry Creek, which flows through his Baker County property, an “intermittent tributary” of Power River. But Judge Mosman said Martin was confusing the two categories, and that left him without a clear cause of action — or standing — on which to base his lawsuit.

Oregon Cattlemen filed its lawsuit before the new rule was in place, and Mosman said the claims hadn’t kept pace with change in regulations.

“What I have here is a case that has evolved from one set of regulations to another, but the case itself hasn’t sufficiently evolved to meet standing requirements,” Mosman said. “Some of those same problems have at least a shot at being curable, so I am dismissing the case for lack of standing but without any prejudice to try again.”

Francois argued that part of the problem with the new rule is that it forces farmers and ranchers to hire experts and pay fees to determine if they are prohibited from using their land the way they’d like to. Under the Obama-era rule it replaced, landowners could petition to recoup their costs if they were eventually found to be legally polluting streams or other bodies of water. Under the Trump administration rule, that’s no longer the case.

But Mosman on Thursday discarded that argument too.

“Isn’t that true of millions of people with the tax code?” Mosman asked. “They don’t know if they have to pay a certain tax or if they might qualify for an exemption and so they have to pay a fee to find out? I don’t want to open the door to people having standing if they have to pay to get help to find out whether a complex law applies to them.”

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