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WOTUS Woes

Posted By MNLA eNews, Friday, February 16, 2018

By Craig Regelbrugge, AmericanHort

On January 22, the Supreme Court in a unanimous decision ruled that challenges to EPA’s 2015 Waters of the United States (WOTUS) Rule should have been brought in district courts, not the federal appellate courts. As a result, the nationwide stay issued by the Court of Appeals for the Sixth Circuit that prevented the WOTUS rule from being implemented is no longer in effect.

There have been various WOTUS lawsuits. One of the district court’s rulings allowed 13 states to stay the rule but not the other 27. The Sixth Circuit ruling stayed the rule in all 50 states, but now it has been vacated, allowing the district courts to rule as they deem fit. There will be a rush by plaintiffs to seek a stay in the various district courts but there is some possibility the rule could go into effect in some of the states—temporarily at least.

EPA and the Army Corps of Engineers have been working vigilantly to repeal WOTUS and replace it with something much more sensible—allowing state and local jurisdictions to do their jobs. However, that process is not complete and will not be until the end of 2018. With this in mind, the Trump Administration is almost certain to join in the plaintiffs’ lawsuits to stay the rule in the various district courts but there is no certainty they will succeed.

The Supreme Court’s decision will create legal uncertainty until the new rule is written. EPA and the U.S. Army Corps of Engineers have not yet finalized either their proposed repeal of the 2015 rule or their proposal to extend the application of the 2015 rule by two years. It is not yet clear when the agencies will finalize either action, but the whole reason they proposed to extend the effective date of the WOTUS rule by two years was to avoid the scenario we are now facing. Stay tuned.

Tags:  AmericanHort  irrigation  water management  Waters of the United States 

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Judge Puts Waters Rule on Hold Nationwide

Posted By MNLA eNews, Monday, October 19, 2015

By Craig Regelbrugge and Davi Bowen, AmericanHort

On October 9, the United States Court of Appeals for the 6th Circuit issued a nationwide preliminary injunction that prevents the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) from implementing the so-called Waters of the U.S. (WOTUS) rule while the court reviews the various legal matters surrounding the regulation. 

The motion for the preliminary injunction was filed by 18 states.  In the ruling, Judge McKeague said, “the stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing.”

The 6th Circuit decision follows a preliminary injunction issued August 28 by the U.S. District Court for North Dakota.  The judge in that case clarified on September 4 that the injunction only applied to the 13 states that were plaintiffs to that litigation.  One of the reasons the district court failed to issue a nationwide injunction was out of deference to Sixth Circuit, where many, but not all, of the legal challenges to the WOTUS rule have been consolidated by the U.S Judicial Panel on Multidistrict Litigation.

The legal challenges surrounding the WOTUS rule will continue, but today’s ruling means that at least for now, the rule cannot be implemented or enforced. The ruling passes no judgment on the technical merits of the rule or the litigation. 

AmericanHort will continue to monitor developments around WOTUS-related litigation, as well as legislation efforts to compel EPA and the Corps to withdraw the rule.  

Tags:  AmericanHort  EPA  irrigation  water management  Waters of the United States 

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EPA "Waters" Rule Published

Posted By MNLA eNews, Monday, June 15, 2015

The MNLA co-signed an AmericanHort-authored letter last winter that requested that the proposed Waters of the United States (WOTUS) Rule be scrapped or significantly revised. That request, along with others by farm and business interests, was largely ignored as the EPA and U.S. Army Corps of Engineers issued their slightly-revised new rule, which will take effect sometime in late summer. Details on what the rule will mean are on this PowerPoint: https://mnnla.site-ym.com/resource/resmgr/eNews/DCLRS_Final-CWA-Rule.pdf

This update is from Craig Regelbrugge, AmericanHort:

As feared, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers have pressed ahead and published their final Waters of the United States rule, rebranded as the Clean Water rule. While EPA and the White House have fine-tuned and sharpened their messaging, early review of the 300-page rule suggests few changes to the substance. As we have previously reported, the rule could subject numerous marginal waters to federal regulation and create confusion and liability for land and business owners. We will provide more detailed analysis after careful review.

Reaction to the release of the final rule, which takes effect in 60 days, was swift and negative. Rep. Collin Peterson (D-MN), the highest ranking Democrat on the House Agriculture Committee, said the following in his official statement:

"I am disappointed but not surprised that the EPA has decided to move forward with a rule that would increase confusion and red tape. Farmers, ranchers, local communities and businesses all expressed concern with the negative impacts of this rule. Despite that, EPA either wasn’t willing to listen or simply just does not get it.

“I am committed to working with my colleagues on both sides of the aisle to explore all available options to ensure these arbitrary and subjective regulations never go into effect."

On May 12, the House passed legislation (H.R. 1732) to require the agencies to withdraw the rule and work with stakeholders to develop a new rule. The Senate Environment and Public Works Committee held a hearing on similar legislation (S. 1140) on May 19. The Senate Small Business and Judiciary Committees are also planning hearings on the regulation. However, even if Congress were to pass legislation to overcome the rule, it may well face a White House veto.

Tags:  AmericanHort  EPA  irrigation  water management  Waters of the United States 

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U.S. House Takes Steps to Block EPA's Attempts to Redefine WOTUS

Posted By MNLA eNews, Friday, September 19, 2014

By Joe Bischoff, Ph.D., courtesy of AmericanHort

Earlier this month, the U.S. House of Representatives passed the "The Waters of the United States Regulatory Overreach Protection Act" (H.R. 5078), which would prohibit the EPA and the Army Corps of Engineers from implementing the proposed definition for what qualifies as a "Waters of the U.S.," often referred to as WOTUS. The bill would also require the agencies to consult with state and local officials to develop a consensus about those waters for which there should be federal jurisdiction. The measure passed by a vote of 262-152. Thirty-five Democrats joined all but one Republican in supporting the measure.

The currently-proposed definition of WOTUS, by the EPA, would greatly expand the reach of the federal government, granting them authority not only over navigable waters, adjacent water bodies, and primary tributaries - as they do now - but to nearly every water body type, including ephemeral and manmade ditches on croplands, which would be far beyond their current authority.

In general, most consider the chances of the House bill passing in the Senate to be small. However, there is hope that pre-election pressure on vulnerable Democrats, especially in states with strong agricultural interest, could force the Senate to take the bill up for consideration.

Tags:  AmericanHort  EPA  irrigation  water management 

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