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EPA, Army propose new WOTUS definitions

Posted By MNLA eNews, Wednesday, December 26, 2018
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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stay issued by the Court of Appeals for the Sixth Circuit that prevented the WOTUS rule from being implemented is no longer in effect.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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Will Congress beat Trump to the punch in rescinding WOTUS?

Posted By MNLA eNews, Monday, August 28, 2017

Congress and President Trump seem to be in a race to rescind the Waters of the U.S. (WOTUS) regulation issued by the Obama administration.


Tags:  government affairs  irrigation  Landscape Management Magazine  water management  Waters of the United States 

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WOTUS: Protecting Waters & Creating Confusion

Posted By MNLA eNews, Friday, April 21, 2017
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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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Federal judge blocks key Obama administration water rule

Posted By MNLA eNews, Monday, August 31, 2015

A federal judge in North Dakota on Thursday blocked an Obama administration rule that would give the federal government jurisdiction over some smaller waterways just hours before it was to take effect. Judge Ralph R. Erickson called the Environmental Protection Agency’s attempt “inexplicable, arbitrary and devoid of a reasoned process,” and issued an injunction preventing the EPA and the U.S. Army Corps of Engineers from claiming oversight of millions of acres of land that contain small bodies of water.

The EPA, though, said it will only honor the injunction in the 13 states that had sued, and will move forward with the rules in the rest of the country. “In all other respects, the rule is effective on August 28,” the agency said in a statement. “The agencies are evaluating these orders and considering next steps in the litigation.” Known as the Waters of the United States — or what critics call WOTUS for short — the new rules have been controversial from the start.

Tags:  EPA  irrigation  Washington Times  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:

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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