Cooper administration withdraws from WOTUS lawsuit

RALEIGH — In a quiet move last week, the Cooper administration retreated from litigation that challenges a series of aggressive Obama-era environmental regulations. Last Thursday, North Carolina Attorney General Josh Stein filed a petition on behalf of N.C. Department of Environmental Quality’s Secretary Michael Regan to withdraw North Carolina from the multi-state lawsuit challenging the Waters of the U.S. (WOTUS) rule. Major stakeholders say they were left in the dark.Under former Republican Gov. Pat McCrory, North Carolina challenged an interpretation of the Clean Water Act which expanded federal authority over small streams and wetlands, a regulation which farmers, developers and their advocates said went too far.The Clean Water Act dates back to the 1970s and, among other things, outlined that the federal government had jurisdiction over navigable waters — waters deep and wide enough for a boat to pass through. However, in 2015 the Obama administration instituted the Waters of the U.S. rule, or “Clean Water Rule,” that expanded jurisdiction to include streams and marshes they felt affected those big waters.”We cannot protect the downstream, float-a-boat Mississippi River unless we protect all the little streams and wetlands that feed into that river,” Jan Goldman-Carter, an attorney for the National Wildlife Federation and a former EPA official, told NPR in February.But agriculture and rural advocates fought hard against the order, most notably through the U.S. Farm Bureau’s “Ditch the Rule” campaign. “It is an overreach of federal authority on private property,” said Larry Wooten, president of the North Carolina Farm Bureau. “It gives the federal government control of farm land in North Carolina. We all support clean water, but this is more than about clean water — it’s about control of the land.”Wooten said he was not notified by anyone within Gov. Roy Cooper’s administration about the withdrawal.North Carolina originally signed on with 30 other states to sue the EPA and Army Corps of Engineers for what they felt was a federal overreach. The case was stayed in the 6th Circuit Court of Appeals in August, and by January opponents of the rule had another major ally on their team — President Donald Trump. Trump ordered a review of the WOTUS rule in an executive order only one month into his presidency. “A few years ago, the EPA decided that navigable waters can mean nearly every puddle or every ditch on a farmer’s land, or any place else that they decide,” Trump said before signing the order. “It was a massive power grab. The EPA’s regulators are putting people out of jobs by the hundreds of thousands.”Cooper administration officials pointed to those recent orders as motivation for pulling out of both the Clean Power Plan litigation in February and the Clean Water Rule litigation this month. “The N.C. Department of Environmental Quality felt it prudent to withdraw from this case because the EPA has announced its intention to rescind or revise the rule,” said NCDEQ spokesperson Jamie Kritzer.But opponents say the move, which was not publicized like the Clean Power Plan change, sends the wrong message. “If the rule was dead and buried, then lawsuits might not be necessary,” said Commissioner Steve Troxler, head of the N.C. Department of Agriculture. “But until then, I don’t think North Carolina should back off of fighting something we know is bad for our farmers.” “It is an unwise decision,” reiterated Rep. Jimmy Dixon (R-Duplin), a strong advocate for agriculture business in the state legislature. “I would favor staying in the lawsuit, irregardless of what he may think now may not happen. We need to remain in a position of strength.”Some worry that the parallel moves with the Clean Power and Clean Water Plans could indicate there is a broader Cooper agenda at play, but Dixon was quick to warn that if the withdrawals signal a pivot to similar state-powered protections, that they “would meet with great resistance at the General Assembly.”