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SCOTUS Acts on WOTUS
Tuesday, January 23, 2018 11:59AM CST
By Todd Neeley
DTN Staff Reporter

OMAHA (DTN) -- The national stay on the 2015 waters of the United States (WOTUS) rule is expected to be lifted following a U.S. Supreme Court ruling Monday that any legal challenges to the rule must take place in federal district courts and not at the appellate level.

However, that doesn't necessarily mean the previous administration's rule will take effect. That's because the U.S. Environmental Protection Agency proposed a rule to put the brakes on the WOTUS rule prior to the Supreme Court's ruling, putting in place a two-year delay on the effective date while EPA undertakes a broader rewrite.

EPA spokesperson Liz Bowman offered the following statement on the Supreme Court decision: "The Trump administration saw this decision coming and put a plan in place to level the playing field and ensure certainty for states and regulated community. The Trump administration's stay of the 2015 WOTUS rule will very likely be complete before any change in court jurisdiction can be finalized, or the Obama administration's overreaching definition of WOTUS can be implemented."

Despite EPA's efforts to change course, starting in 2017, some interest groups that opposed the 2015 rule are hesitant to say the fight has ended.

Ellen Steen, general counsel of the American Farm Bureau Federation, said in a statement the group continues to keep its eye on the rule.

"The U.S. Supreme Court ruled correctly today that federal district courts -- not federal courts of appeals -- have jurisdiction to review the 2015 waters of the U.S. rule," she said.

"This Supreme Court decision brings greater clarity to an important issue that has bogged down the litigation over this and other Clean Water Act regulations for years. That is a positive result, but it also creates uncertainty and confusion in the short term, because the Sixth Circuit must soon lift its nationwide stay of the 2015 rule."

The U.S. Court of Appeals for the Sixth Circuit in Cincinnati issued a national stay of the rule in response to lawsuits across the country and lingering questions about the rule's legality.

Agriculture, other industry groups, and state governments across the country alleged the Obama administration's rule expanded federal jurisdiction to waters not traditionally protected by the Clean Water Act. Even prior to the completion of the rule, farmers and ranchers faced uncertainty as to which waters were considered jurisdictional. So far, neither Congress nor the EPA has been able to make the law more understandable.

The water rule was touted by the EPA as a means to clarify which areas around waterways the federal government has authority to either require a federal permit or stop any activity that would disturb the waterway. Opponents claim the rule would give regulatory agencies broad authority over basic farming practices simply because water may pool somewhere after a rain or fill a ditch.

"At this time, the Environmental Protection Agency has not yet finalized its proposed rule to delay the application of the unlawful and dangerous 2015 WOTUS rule while the agency considers whether to permanently repeal that rule," Steen said.

"AFBF is considering its options to avoid application of the 2015 rule while EPA moves forward with an appropriate long-term solution that provides clear rules and clean water without requiring a federal permit to plow a field."

Also last year, EPA proposed an interim rule to return the water rule back to its pre-2015 status. The interim rule came about as a result of President Donald Trump's Feb. 28, 2017, executive order calling for a review of the WOTUS rule.

The EPA announced it would attempt to better define "navigable waters" in what is expected to be a two-part effort. The second part of the agency's plan includes then re-writing the rule. As part of that effort, the agency reached out to governors in all 50 states to seek input.

The Supreme Court's ruling came on a petition by the National Association of Manufacturers. The group challenged the Sixth Circuit Court of Appeals' ruling that it is the proper court to consider the cases.

A February 2016 ruling by the appeals court indicated a split among three justices about whether it was correct to use a pesticide sprayer case, National Cotton Council v. EPA, as a precedent for determining questions of jurisdiction. In the 2009 National Cotton Council case, the Sixth Circuit threw out an EPA rule that would have exempted pesticides sprayed on water from the Clean Water Act rules.

That decision led to states requiring farmers across the country to get permits to spray pesticides.

Agricultural and other industry groups were unconvinced legal challenges to the rule should be heard by the Sixth Circuit even though judges in that court have indicated in previous rulings they may be sympathetic to those groups that claim the rule is a flawed federal overreach. Opponents of the rule fear that if legal challenges to the WOTUS rule are tried in the wrong jurisdiction, any rulings could face appeals.

National Association of Manufacturers Senior Vice President and General Counsel Linda Kelly said the group will continue to push for a new rule.

"For three years, the Manufacturers' Center for Legal Action has fought the waters of the United States rule, which seeks to regulate a broad swath of land across the country, even some that isn't wet," she said in a statement.

"We are fighting this overreaching and unfair rule in court because it threatens manufacturing jobs and fails to take a balanced approach to protecting clean water. We will continue to advocate a new rule that conforms to the Clean Water Act, protects our nation's waters and provides clarity for manufacturers and landowners around the country."

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

Follow him on Twitter @toddneeleyDTN

(AG/CZ)


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