August 17, 2018

WOTUS Returns

 |  By: John Herath

U.S. farmers thought they had seen the last of the beleaguered Waters of the U.S. (WOTUS) rule in January when the Trump administration moved formally to rescind the regulation and start over with a new version. That broadening of federal jurisdiction under the Clean Water Act, however, became the law of the land in 26 states as the U.S. District Court for South Carolina ruled that the administration did not follow the proper rulemaking process in rescinding WOTUS. The court ruled that the Environmental Protection Agency (EPA) did not meet requirements for public notice nor a sufficient comment period.

The ruling leaves a patchwork of regulation across the country as courts have issued stays blocking the rule in 24 states. Consequently, the South Carolina ruling only impacts those states that do not have a legal stay in place blocking WOTUS.

“Due to a misguided ruling by a single federal district court today, the overbroad, vague and illegal 2015 Waters of the United States Rule is now the law of the land in twenty-six states,” said American Farm Bureau Federation President Zippy Duvall in a statement. “To avoid widespread uncertainty and potential enforcement against ordinary farming activities in these already-uncertain times, we call on the administration to take immediate steps to limit the impact of this dangerous court decision. The U.S. District Court for South Carolina was wrong to invalidate the agency’s ‘applicability rule’ that had simply delayed the effective date of the 2015 WOTUS rule. The delay rule would have maintained regulatory certainty and stability while the administration completes its reconsideration of the 2015 rule and works to develop a new regulation to provide both clean water and clear rules. Today’s court ruling creates enormous regulatory uncertainty and risk for farmers, ranchers and others in the 26 states that are not already protected from the unlawful 2015 rule by previous court decisions.”

The proposed rule was a rallying cry for a host of agricultural organizations, because it broadened the enforcement scope of the Clean Water Act beyond the “navigable waters” outlined in the original act. It also created regulatory uncertainty as to how far that enforcement power could reach.

EPA has not yet indicated whether the agency will appeal the ruling.

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