WOTUS injunction now in effect in 28 statesWOTUS injunction now in effect in 28 states
Battle in courts continues regarding whether EPA should enforce 2015 waters of the U.S. rule.
September 26, 2018
The Trump Administration is working to repeal the waters of the U.S. (WOTUS) rule, but each move by the Environmental Protection Agency is tackled in court. Just last month, a federal district court struck down EPA’s nationwide delay of the 2015 WOTUS rule, making it the law of the land once again in 26 states.
The American Farm Bureau Federation and a broad coalition of business groups on Wednesday asked a federal district court in Georgia to expand its prior order delaying implementation of the flawed 2015 Waters of the U.S. rule in 11 states. The coalition asked that the United States District Court for the Southern District of Georgia extend its previous injunction to block the WOTUS rule in the remaining 22 states that are currently subject to the rule.
If the Georgia court extends its injunction as requested, the WOTUS rule will be temporarily blocked in all 50 states.
As explained in the motion, one of the many problems with the WOTUS situation is the hodgepodge of states in which the federal rule is applicable. “This is a deeply troubling state of affairs. A rule this fundamental to the [Clean Water Act’s] regulatory scheme should not apply in a patchwork manner,” the motion noted.
Most importantly, the filing highlights the ill logic of allowing piecemeal enforcement of an almost certainly doomed regulation. As stated in the motion, “the public has no interest in the enforcement of an illegal rule.”
The WOTUS rule, now enjoined in 28 states, was issued by EPA to clarify its jurisdiction over “navigable” waters under the Clean Water Act. The Obama Administration-era regulation dramatically expanded the agency’s jurisdiction to include, among other water bodies, upstream waters and intermittent and ephemeral streams, such as the kind farmers use for drainage and irrigation. It also covered lands adjacent to such waters.
Farmers and ranchers in 22 states are subject to the confusing and unlawful WOTUS rule. “For those farmers and ranchers, every small wetland, ditch or ephemeral stream on their land is a regulatory landmine. That’s one more layer of uncertainty for farmers in these already uncertain times,” Zippy Duvall, president of the American Farm Bureau Federation, wrote in his latest "Zipline."
Duvall called the 2015 WOTUS rule a “pig in a poke — bureaucratic doublespeak designed to allow the federal government to regulate productive land use. Thankfully, several courts recognized the dangerous potential of the rule and blocked it — temporarily — but those orders only apply in specific states, leaving farmers in much of the country still vulnerable to enforcement.”
The Trump Administration EPA in January delayed the rule’s effective date until 2020 -- a move applauded by many agricultural groups – and agreed to work with stakeholders, including farmers, on a new regulation.
In August, the U.S. District Court for the District of South Carolina overturned the delay, agreeing with environmental groups that the Trump Administration did not follow the Administrative Procedures Act when suspending the rule, and reinstated the regulation for the 26 states where it hadn’t been blocked.
In recent weeks, a U.S. district court in Texas granted an injunction for Louisiana, Mississippi and Texas. These states were affected by the South Carolina court's overturning.
The U.S. District Court for the District of North Dakota added Iowa to the list of 12 states that do not need to implement the 2015 WOTUS rule. In August 2015, that court issued a preliminary injunction against the regulation for Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.
In June, a U.S. district court in Georgia granted an injunction for Alabama, Florida, Georgia, Indiana, Kansas, Kentucky, North Carolina, South Carolina, Utah, West Virginia and Wisconsin.
“When it comes to waters of the U.S., the game isn’t over, the outcome isn’t certain and our opponents would like to run out the clock. None of us can afford to sit passively in the stands — much less celebrate,” Duvall added. “If these months of blocking and tackling lead us to a future where our land isn’t regulated like water, it will have been worth the effort.”
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