Farm Bureau Member Testimony Warns Congress of WOTUS Overreach Implications

 

A Florida Farm Bureau member, rancher, small business owner and environmental lawyer presented a first-hand account of the implications of the federal government’s overreach to the House Committee on Small Business this week.

Katherine English, who grows citrus and raises cows and calves in Fort Myers, Florida, participated on a panel comprised of small business owners. English provided an overview of the uncertainty faced by farmers, ranchers, homebuilders and more during the hearing titled “Small Business Perspectives on the Impacts of the Biden Administration’s Waters of the United States (WOTUS) Rule.”

“Farmers and ranchers’ livelihoods depend on healthy soil and clean water. We support the Clean Water Act and its goals,” English explained during her opening statement to the committee. “What we cannot support is a Waters of the United States rule that is so ambiguous it creates unmanageable risk and confusion for farmers.

“Farmers have struggled with uncertainty for decades, with near-constant rulemaking and litigation in regard to WOTUS. A workable definition of WOTUS is critically important to our members and they are extremely disappointed that the Biden administration’s new WOTUS rule fails to provide that.”

English testified that the proposed WOTUS rule greatly expands the federal government’s reach over private property and that the significant nexus test, currently under scrutiny in the U.S. Supreme Court, allows the Environmental Protection Agency and U.S. Army Corps of Engineers to aggregate and regulate waters that would not otherwise be subject to federal jurisdiction...more

Supreme Court to hear high-stakes challenge to Clean Water Act

...The case, Sackett v. Environmental Protection Agency, centers on a long-running dispute involving an Idaho couple named Chantell and Michael Sackett.

• The couple began their lengthy legal battle in 2007, when they tried to build a home on their land near Idaho's Priest Lake. The EPA determined that the property contained a wetland, and that the couple needed to obtain a Clean Water Act permit or face heavy fines.
• The Sacketts, who are represented by the conservative Pacific Legal Foundation, have won at the Supreme Court before. This time, they're calling on the justices to significantly narrow the definition of “waters of the United States” so that their property — and others like it — would not be subject to the Clean Water Act.
• In the famously muddled 2006 case Rapanos v. United States, the justices split 4-1-4 over which test courts should use to determine what constitutes “waters of the United States.”
• Under the test proposed by then-Justice Anthony M. Kennedy, a wetland must have a “significant nexus” to regulated waters. Federal courts have favored this interpretation, which informed the Obama administration's Clean Water Rule.
• Under the narrower definition proposed by then-Justice Antonin Scalia, a wetland must have a “continuous surface connection” to "relatively permanent" waters. Business groups such as the Chamber of Commerce and National Association of Home Builders favor this interpretation, which informed President Trump's Navigable Waters Protection Rule...MORE

 

Supreme Court will review controversial water rule

 

The property purchased by Mike and Chantell Sackett in northern Idaho is pictured here and was dubbed within the regulatory purview of the Clean Water Act, even though a nearby lake is 300 feet away and there are rows of houses between the property and the water.

A neighborhood lot in Idaho. Farmland in California. Properties in the West are running up against a controversial water rule that the Supreme Court is due to revisit.

Will it change anything?

Mike and Chantell Sackett bought a vacant lot to build their dream home on in a mostly built-out subdivision in northern Idaho only to be told by the federal government their property was a wetland and subject to the authority of the Clean Water Act.

“The Sacketts’ vacant lot neighbors Priest Lake, which is 300 feet away and behind two rows of houses,” said Tony Francois, an attorney with the Pacific Legal Foundation, which sued on behalf of the couple in 2008.

Francois said the U.S. Environmental Protection Agency and Army Corps of Engineers have construed a rule, called Waters of the United States, or WOTUS, to expansively extend their authority beyond what is reasonable due to an earlier 2006 Supreme Court decision that gave little to no clarity on the issue.

...In California, farmer Jack LaPant purchased 900 acres that had been for years traditionally farmed for winter wheat. He planted winter wheat on the newly acquired land and then subsequently sold it to another buyer. The eventual new owner planted an orchard.

Then the Army Corps of Engineers issued a cease-and-desist order to the newest buyer and, five years after LaPant had owned the property, he was cited for destroying “vernal” pools...MORE

District Court Vacates Trump Administration "Waters" Rule, So What's Next for WOTUS?

 

The Army Corps and EPA were happy to have the Trump Administration rule remanded, as they are working on a more expansive replacement that will itself face legal challenge.

JONATHAN H. ADLER | 8.31.2021 7:09 PM

Yesterday a federal district court judge in Arizona vacated and remanded the Trump Administration's "Navigable Waters Protection Rule" (NWPR) which adopted a somewhat narrow definition of "waters of the United States" (WOTUS) under the the Clean Water Act (CWA). This definition is important because it determines the scope of federal regulatory authority under the CWA, including what wetlands are subject to CWA permitting requirements as part of the "waters of the United States."

The decision by Judge Rosemary Marquez in Pasqua Yaqui Tribe v. U.S. Environmental Protection Agency is merely the latest judicial decision in a decades-long fight over the scope of CWA regulatory jurisdiction. These fights date back to the 1980s, when the U.S. Army Corps of Engineers and Environmental Protection Agency first adopted expansive interpretations of their regulatory authority under the CWA. In the 2000s the agencies suffered two major losses in the Supreme Court (SWANCC and Rapanos), but failed to trim their regulatory ambitions.

The Obama Administration adopted an expansive WOTUS rule in 2015, and it too faced judicial skepticism, but was withdrawn by the Trump Administration in 2019 before reaching the Supreme Court on the merits. The NWPR was adopted in April 2020, and has now been vacated before it was even two years old.

Judge Marquez was aided in her conclusion that the NWPR by the agencies' acquiescence to many of the plaintiffs' arguments. Given the switch in adminstrations, the agencies conceded "substantial concerns about certain aspects of the NWPR . . . including whether the NWPR adequately considered the CWA's statutory objective" and "the effects of the NWPR on the integrity of the nation's waters." Such errors, Judge Marquez concluded, were fundamental, substantive flaws" in the rulemaking that required vacatur.

Left unaddressed in the opinion is the fact that such concerns were decisively rejected by Justice Kennedy in his controlling Rapanos opinion. Waters and wetlands must have "significant nexus" to "navigable waters" to fall within the CWA's ambit, Justice Kennedy explained, cautioning that "environmental concerns provide no reason to disregard the limits in the statutory text." The Trump NWPR, despite its flaws (which I discussed here), was the first Army Corps and EPA rule to take such limits seriously in over thirty years.

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Notice the areas I have highlighted.

The first highlight indicates how important this issue is to the feds. In spite of two Supreme Court losses, they refuse to give up authority. We must have water to survive and the feds want control over that water.

The second highlight shows the feds gave away the case for the enviros position. Compare this to the recent decision on wolves, where the feds are recognizing the authority of the states. Again showing the importance to them of the water issue. You can manage the wolves, even establish hunting seasons for them, but you cannot do the same with water.

The third highlight lets me answer the question of why one with libertarian tendencies such as I, would support a Trump presidency which failed us on so many issues. My answer is: If the feds control the land, the air and the water, the game is over. We must have land to live and produce on, we must breathe air and we cannot survive without water. We will have ceded total control over our lives to the feds, which is about as far from my political philosophy as you can get. Trump was bringing progress on the air and water issues, and so garnered my support.

New WOTUS rule goes into effect

The Trump Administration’s waters of the U.S. (WOTUS) rule, now termed the Navigable Waters Protection Rule, went into effect on June 22 after a San Francisco, Cal., judge denied a request from state Democrat governors to block the implementation. Meanwhile, a federal judge in Denver, Colo., blocked the federal water rule from going into effect in Colorado. The 2020 rule defines the “waters of the U.S.” as: (1) the territorial seas and traditional navigable waters, (2) tributaries of such waters, (3) certain lakes, ponds and impoundments of jurisdictional waters and (4) wetlands adjacent to other jurisdictional waters (other than waters that are, themselves, wetlands). The rule also laid out specific exclusions, such as ephemeral features as well as ditches and farm ponds. U.S. district Judge Richard Seeborg of San Francisco stated in his 15-page ruling, “Were the court tasked with the question of whether the new rule represents wise environmental policy or the best approach to protecting water resources that could be supported by scientific data, the result might be different. The court’s narrow role, however, is only to evaluate whether the rule has been adopted in compliance with the requirements of the Administrative Procedure Act. In that context, plaintiffs have not made a sufficient showing to support an injunction or an order delaying the effective date of the new rule.” Seeborg noted in his opinion: “Although the meaning of ‘waters of the United States’ in the Clean Water Act has been extensively addressed in no fewer than three Supreme Court cases, the validity of the 2020 rule presents a completely new question. In the prior cases, the issue was always whether the agencies had gone too far in extending the scope of federal regulation. Now, the question is whether the agencies have not gone far enough. So, while some guiding principles may be distilled from existing precedents, this is largely a blank slate.” The opinion also explained, “In the absence of precedent construing what must be included as ‘waters of the United States,’ plaintiffs are left with little more than policy arguments that the narrowness of the 2020 rule serves poorly to carry out the objectives of the [Clean Water Act].”...MORE

Green groups challenge Trump water rollback

A coalition of environmental groups sued the Trump administration on Monday, challenging a rollback of protections for the nation’s waterways originally put in place under the Obama administration. The Navigable Waters Protection Rule finalized by the Environmental Protection Agency (EPA) in January limits federal protections for smaller bodies of water, a move critics say risks contamination of larger ones used for drinking water. The suit, filed by Earthjustice on behalf of Sierra Club, other environmental groups, and a number of tribes, argued the Trump administration erred in removing protections for wetlands and streams that result from rainfall. The plaintiffs called the rule an “egregious example of putting profits over people. Industrial polluters could potentially be given free rein to dump toxic pollution into nearly 2 million miles of the nation’s streams and 20 million acres of wetlands for which protections would be removed. This must not be allowed to happen.” The suit, filed on the day the law takes effect, is the third filed by a coalition of environmental groups and also follows litigation filed by 17 states. A Colorado-based suit has succeeded in temporarily blocking the rule there...MORE

Ranchers, environmentalists on collision course in defining ‘waterway’

...It’s unclear what protections the state will make through what’s expected to be a years-long stakeholder process. What is known is some changes, like a pollution control permitting program, would need legislative approval. But Arizona Farm Bureau President Stefanie Smallhouse said DEQ is overstating the rule’s reach. “For the Arizona Department of Environmental Quality to state that there will be many waters uncovered at this point is not true,” Smallhouse said, adding that her group has asked for maps of these ephemeral streams, which she said the department hasn’t provided.
DEQ said it can only provide an estimate for these waters and no such map exists yet, but the EPA is working to make one. The previous rule, Smallhouse said, required permitting for things that are “normal agricultural practices,” that can take up to two years. Smallhouse said the concerns from environmental groups are disingenuous and made with the intention of controlling land use, not protecting water. “In the farming, ranching business, you can’t wait two years to plant a crop or to raise livestock or, you know, to put in a pipeline to water your livestock,” Smallhouse said. “I shouldn’t have to hire a lawyer in order to determine whether changing my cropping in a field that’s adjacent to a dry wash is going to require a permit.”...MORE

Farmers welcome new federal rule on water quality

Farmers and ranchers expressed support for a new federal rule to protect navigable waters under the Clean Water Act, saying the rule should offer certainty, transparency and a common-sense approach about how the rule would apply on the farm.
California Farm Bureau Federation President Jamie Johansson said last week's release of the Navigable Waters Protection Rule by the U.S. Environmental Protection Agency and Army Corps of Engineers "promises clear guidelines to help farmers maintain and improve water quality while retaining the flexibility they need to manage their land."
The Navigable Waters Protection Rule, which will take effect once published in the Federal Register, will replace the 2015 Waters of the United States rule that would have given federal agencies extensive authority to regulate routine farming activities. Farm Bureau advocated for a repeal and rewrite of the 2015 WOTUS rule because of its expansion of federal jurisdiction over water and land.
"The old WOTUS rule generated only confusion and litigation," Johansson said. "We hope the new rule will lead to a more cooperative approach that sees farmers and ranchers as partners in protection of natural resources. You won't find a stronger ally than farmers and ranchers when it comes to protecting land and natural resources, because they depend on those resources to produce food and farm products."
Following a 2017 presidential executive order, the EPA and Corps reviewed and then rescinded the previous WOTUS rule. In December 2018, the agencies released a draft of the newly proposed rule that revised the definition of waters of the U.S., to clarify federal authority under the Clean Water Act.
The revised Navigable Waters Protection Rule defines four categories of waters that are federally regulated: territorial seas and traditional navigable waters; perennial and intermittent tributaries to those waters; certain lakes, ponds and impoundments; and wetlands adjacent to jurisdictional waters. The new rule also describes what is not subject to federal control, such as features that only contain water due to rainfall; groundwater; many ditches; prior converted cropland; farm and stock watering ponds; and waste treatment systems.

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EPA Replaces WOTUS with Navigable Waters Protection Rule

The troubled 2015 Waters of the U.S. (WOTUS) rule introduced by the Obama administration in 2015 to define which waters are regulated by the Clean Water Act was officially replaced today by the Navigable Waters Protection Rule. “EPA and the Army (Corps of Engineers) are providing much needed regulatory certainty and predictability for American farmers, landowners and businesses to support the economy and accelerate critical infrastructure projects,” said EPA Administrator Andrew Wheeler announcing the new rule on a press call. “After decades of landowners relying on expensive attorneys to determine what water on their land may or may not fall under federal regulations, our new Navigable Waters Protection Rule strikes the proper balance between Washington and the states in managing land and water resources while protecting our nation’s navigable waters, and it does so within the authority Congress provided.” The WOTUS rule was criticized by farm groups over vague language that left farmers and landowners unable to determine whether their property was regulated by the rule. And it was criticized by President Donald Trump when he spoke to the American Farm Bureau Federation earlier this week. “So, this rule gave bureaucrats virtually unlimited authority to regulate stock tanks, drainage ditches and isolated ponds as navigable waterways and navigable water,” he said. “You believe that? Sometimes you'd have a puddle, a little puddle, and they’d consider that a lake. As long as I'm President, government will never micromanage America's farmers. EPA sought to clarify the edges of that regulatory authority in the new Navigable Waters Protection Rule. The new rule also spells out 12 specific exemptions from jurisdiction under the Clean water act “including features that only contain water in direct response to rainfall; groundwater; many ditches, including most farm and roadside ditches; prior converted cropland; farm and stock watering ponds; and waste treatment systems.”...MORE

Major changes to the WOTUS rule are coming Podcast

https://politico-energy.simplecast.com/episodes/major-changes-to-the-wotus-rule-are-coming

14 states sue EPA over rollback of Obama-era water rule

A coalition of 14 states sued the Environmental Protection Agency (EPA) on Friday over its rollback of a landmark Obama-era rule stipulating which waterways are regulated by the federal government. The Waters of the United States (WOTUS) rule expanded the scope of waters that farmers, manufacturers and other industries would need to ensure are in compliance with EPA guidelines. The Trump rollback of the rule, announced in September, would relegate waterway protections to 1986 standards. A proposal for the areas that would be covered under the rule is expected sometime next year. The coalition of states argue that returning the U.S. to the narrower 1986 standard ignores studies showing how small bodies of water, even seasonal ones following snowmelt, connect with and impact larger bodies of water more typically targeted for regulation. “This regressive rule ignores science and the law and strips our waters of basic protections under the Clean Water Act. Attorneys general across this nation will not stand by as the Trump Administration seeks to reverse decades of progress we’ve made in fighting water pollution,” New York Attorney General Letitia James, who spearheaded the suit, said in a statement. Critics of WOTUS argue that the 2015 rule requires grand efforts from farmers and others to protect relatively small bodies of water that run through their property, ultimately subjecting more land to federal oversight...MORE

Why Flushing the ‘Clean Water Rule’ Was the Right Thing to Do

Daren Bakst

Thursday saw a major win for the rule of law, property rights, and the environment: The Trump administration announced that it had finalized its repeal of President Barack Obama’s infamous 2015 Clean Water Rule. For decades, the Environmental Protection Agency and the U.S. Army Corps of Engineers have struggled to define the Clean Water Act’s term “waters of the United States” in a manner that can pass judicial scrutiny. That definition is extremely important, because it clarifies what waters the agencies can regulate under the statute. Instead of learning from past mistakes, the Obama administration decided it would take the federal overreach to a new level while ignoring the plain language of the Clean Water Act. There’s a reason why there was such diverse and widespread opposition to this Obama rule: It’s a rule that could have made it very difficult for Americans to engage in even ordinary activities, such as farming or building a home. The Obama rule was so extreme it would have regulated waters that couldn’t even be seen by the naked eye.The American Farm Bureau Federation explained:

…distant regulators using “desktop tools” can conclusively establish the presence of a “tributary” on private lands, even where the human eye can’t see water or any physical channel or evidence of water flow.
That’s right—invisible tributaries!
The agencies even claim “tributaries” exist where remote sensing and other desktop tools indicate a prior existence of bed, banks, and [ordinary high-water marks], where these features are no longer present on the landscape today.

The rule would have made it possible to regulate “waters” that were, in effect, dry land, such as a depression in land that holds water a few days a year after heavy precipitation. Then there’s the “we will know a regulated water when we see it” aspect of the rule. If waters didn’t fall under specific categories as listed in the rule, then the Obama rule created a backup plan to help ensure the agencies could still have the ability to regulate additional waters. The rule made it possible for the agencies to regulate some waters on a case-by-case basis if they decided that the water had a “significant nexus” to certain regulated waters. A property owner couldn’t have known what this would cover, because such determinations would have been at the subjective whim of agency officials.
That’s particularly problematic because the Clean Water Act has both civil and criminal penalties.

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Trump Admin To Undo ‘Oppressive’ Obama-Era Water Regulation

The Trump administration is officially rolling back an Obama-era environmental rule that threatened farmers and other landowners with significant fines or jail time if they failed to comply with onerous regulations on waterways. The Clean Water Rule, more commonly referred to as the “Waters of the US” rule or WOTUS, was finalized by the Obama administration in 2015. The rule attempted to clarify which waters were subject to the regulations of the Clean Water Act, but in many cases ended up confusing land owners even further.For example, WOTUS is supposed to contain agricultural exemptions for farmers. But the federal government sued John Duarte for $2.8 million for plowing his field without a permit because he resided on seasonal wetlands. A senior administration official described the Trump administration’s move to undo WOTUS as a win for land owners and a pushback on government overreach. In a 2016 case, 77 year old Navy veteran Joe Robertson was criminally prosecuted and served 18 months in prison because he dug ponds around his Montana home in the hopes of keeping wildfires at bay. The ponds were connected to a foot-wide “river,” so the EPA determined that Robertson had been digging too close to “navigable water” without a permit. At the time of the rule’s implementation, the Obama administration claimed that it was necessary to protect U.S. waterways from pollution...MORE

Ernst Calls for Rollback of Obama-era WOTUS Rule to Be Codified Into Law

U.S. Senator Joni Ernst (R-IA) introduced legislation to codify into law the Trump Administration’s rollback of the Obama-era “Waters of the United States,” or “WOTUS,” rule.
“The Obama-era WOTUS rule threatened Iowa’s farmers, manufacturers, and small businesses by giving the federal government authority to regulate water on 97 percent of land in our state,” said Senator Joni Ernst. “President Trump and his administration have taken tremendous steps to roll back this overreaching regulation and provide for more certainty with a new, clearer definition of WOTUS. But it’s the job of Congress to make a new, reasonable definition permanent, and that’s what this bill does—it ensures more predictability and workability for Iowans for years to come.”
In late 2018, the Trump Administration’s Environmental Protection Agency (EPA) released a proposed rule to replace the Obama Administration’s 2015 WOTUS rule. The Define WOTUS Act would codify a definition of “Waters of the United States” and reassert Congressional responsibility to define this important term. The definition in the Define WOTUS Act also makes substantial improvements over various administrative attempts to define the term by clearly outlining what is, and is not, a federally regulated waterway.
Senator Ernst introduced the bill with Senator Mike Braun (R-IN).
Background
Like EPA’s rule, the Define WOTUS Act provides much greater certainty to American farmers, workers, businesses and landowners. It gives landowners clear guidelines by which they can go out on their land and clearly determine what is regulated by the EPA and what is not. Because Congress is not restricted by various rulemaking statutes, the Define WOTUS Act provides a clearer definition with more obvious safeguards to protect against a runaway bureaucracy.

###

Press Release 

Too bad they didn't pass this when the R's controlled both Houses of Congress and the White House. Now it will go nowhere. 

Court Tosses 2015 Obama WOTUS Rule

Johnathan H. Adler

Last night, in Texas v. U.S. Environmental Protection Agency, a federal district court in Texas held that the Obama Administration violated the Administrative Procedure Act when it adopted a revised definition of "waters of the United States" in 2015, and remanded the so-called WOTUS rule back to the federal agencies from whence it came. The definition of "waters of the United States" is of particular importance because it defines the scope of federal regulatory jurisdiction under the Clean Water Act (CWA). In short, the CWA prohibits the discharge of materials into "navigable waters" without a federal permit, and the Act defines "navigable waters" as "waters of the United States." A broader definition means that more activities that take place on or near such "waters" are subject to federal regulation. The precise scope of CWA jurisdiction has been the subject of litigation and legal wrangling for decades. In 2015, the U.S. Army Corps of Engineers and Environmental Protection Agency sought to bring greater certainty to CWA regulation with a new, fairly broad definition of "waters of the United States"—the so-called WOTUS rule. Yet because this rule adopted an expansive interpretation of "waters of the United States," numerous states, industry organizations, and property rights groups sued. Much of the debate over the 2015 WOTUS rule focuses on whether the Obama Administration asserted federal regulatory jurisdiction beyond the scope of what the CWA authorizes or the Constitution permits. Yet Judge Hanks did not need to reach such questions to throw out the rule. In promulgating the 2015 rule, the Army Corps and EPA failed to comply with the basic requirements of notice-and-comment rulemaking under the Administrative Procedure Act (APA). Specifically, Judge Hanks noted, key aspects of the final rule were not a "logical outgrowth" of the initial regulatory proposal published in the Federal Register and the public was never given the opportunity to comment on a key study that was "instrumental" in the final regulation adopted by the EPA and Army Corps...MORE

EPA to roll back protections in rewrite of Obama-era water rule

The Environmental Protection Agency (EPA) is expected to unveil a new proposal that would roll back major federal protections for thousands of U.S. waterways and wetlands. The Trump administration is expected to rewrite a major national water rule imposed by former President Obama in 2015, The Associated Press reported Saturday. The outlet obtained a set of White House talking points for the proposed new water rule, which indicate that the Trump administration is stripping federal protections for waterways. The White House talking points reportedly argue that the "previous administration’s 2015 rule wasn’t about water quality," according to the AP. “It was about power - power in the hands of the federal government over farmers, developers, and landowners,” the statement indicates. Trump signed an executive order last year aimed at overhauling the Obama-era Clean Water Rule, which deals with what waterways are protected under the EPA and U.S. Army Corps of Engineers. The Hill has reached out to the EPA for comment. Jan Goldman-Carter, senior director of wetlands and water resources at the National Wildlife Federation, told the AP that about 60 percent of the stream miles in the continental U.S. and would no longer be protected. The proposed rollback would also strip protection for half of the U.S. wetlands, Goldman-Carter said. She called it an “an unprecedented rollback of Clean Water Act protections.”...MORE

The AP story linked to is headlined Landmark environmental protections being rolled back 

Notice how so-called "objective" journalists use language to bias the reader, We constantly see the term roll-back.   We are going backwards instead of forward. A more accurate phrase would be remove intrusions. Instead of or in addition to environmental protections should appear protections for the property owner. Both articles use stripped, not removed or revised, but stripped of protections, No mention of property owners having been stripped of landmark property rights or of  rights being restored.

I see this every day and it ticks me off. What words or phrases do you see in stories that inpart this bias? Please share them.

UPDATE

Note the following headline

 Trump’s Attack on the Clean Water Act Will Fuel Destructive Pipeline Boom

That's another favorite word, "attack". Any attempt to revise, update or bring balance to an environmental program or regulation is an "attack".

Legal Battle on 2015 WOTUS Rule Rages on in Multiple Federal Courts

A federal court has been asked to stay a nationwide injunction that effectively makes the 2015 waters of the United States, or WOTUS, rule the law of the land in 26 states. This is according to a motion filed by agriculture groups on Monday in the U.S. District Court for the District of South Carolina. On Aug. 16, WOTUS took effect in 26 states after a federal judge issued a nationwide injunction on the EPA rule that delayed the implementation of the Obama-era regulation. The 2015 rule remains on hold in 24 states after a series of district court decisions in North Dakota and Georgia. The groups led by the American Farm Bureau Federation filed an appeal with the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia. They are attempting to overturn the South Carolina district court ruling that threw out the EPA’s rule to delay the implementation of the 2015 WOTUS rule by two years until 2020. In the motion filed on Monday, the farm groups asked for a stay pending that appeal. The ag groups also include the National Cattlemen’s Beef Association, National Corn Growers Association, National Pork Producers Council, South Carolina Farm Bureau, Texas Farm Bureau and U.S. Poultry and Egg Association. Last week they asked the U.S. District Court for the Southern District of Texas in Galveston, to issue a national injunction on the 2015 rule. With the ruling last Thursday, the 2015 rule now is in effect in Iowa, Illinois, California, Washington, Oregon, Tennessee, Texas, Vermont, Virginia, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, Mississippi, Minnesota, Michigan, Massachusetts, Maryland, Maine, Louisiana, Hawaii, Delaware and Connecticut. Because of court actions in other cases, the 2015 rule remains on hold in Georgia, Alabama, Florida, Indiana, Kansas, North Carolina, South Carolina, Utah, West Virginia, Wisconsin, Kentucky, South Dakota, Missouri, Alaska, North Dakota, New Mexico, Idaho, Arizona, Nebraska, Montana, Arkansas, Nevada, Colorado and Wyoming...MORE

Federal judge orders Trump to reinstate Obama's Waters of the US rule

A federal judge issued a nationwide injunction Thursday against the Trump administration for delaying the Obama-era Waters of the United States rule, dealing a setback to a key piece of President Trump's deregulatory agenda. The decision by the U.S. District Court in South Carolina means that the so-called Clean Water Rule is again operative in 26 states where district courts have not halted the regulation. Former Environmental Protection Agency Administrator Scott Pruitt signed a finalized regulation in February delaying the Waters of the U.S. rule until 2020 to allow the agency to go through a process of rewriting a more modest version of it. Opponents said EPA avoided the customary 30-day waiting period between the rule's finalization and its effective date, circumventing the Administrative Procedures Act, or APA. “As administrations change, so do regulatory priorities,” said Judge David Norton, an appointee of George H.W. Bush, in his ruling. “But the requirements of the APA remain the same. The court finds that the government failed to comply with these requirements.” The National Association of Manufacturers, a defendant in the case, said it would appeal the decision. “The ruling is problematic because it creates a patchwork of states where the WOTUS rule applies and others where it does not," said Peter Tolsdorf, the association's deputy general counsel...MORE

Senate blocks bid to stop Obama water rule

The Senate voted Thursday to block a measure by Sen. Mike Lee (R-Utah) that would have repealed former President Obama’s landmark water pollution rule. The amendment would have prohibited funding in a major spending bill from being used by the Army Corps of Engineers to enforce the Clean Water Rule, also known as Waters of the United States. The rule was developed alongside the Environmental Protection Agency (EPA). Multiple federal courts have put it on hold, and the Trump administration is working to repeal it. Senators voted 62-34 to table the amendment, effectively blocking it. Republicans have consistently opposed the water rule, but 20 GOP senators voted with most Democrats to block Lee’s amendment, since it would break a deal that Senate Appropriations Committee leaders made to avoid controversial policy provisions in spending bills...MORE

Waters of the United States Rule: Posturing and Litigation Continue, But the Substance Has Yet to Be Addressed

Richard G. Leland

When it comes to legal definitions, only a few have been as controversial for the real estate sector as what constitutes “the waters of the United States.” 33 U.S.C. 1362(7). Also known by the now-infamous acronym “WOTUS,” challenges to the regulatory framework behind it have created one of the most protracted regulatory battles on record—all the while leaving the fate of those seeking real estate permits in a state of great ambiguity where each situation requires a case-by-case assessment as opposed to adherence to a set of standard rules. Section 401(a) of the Clean Water Act, 33 U.S.C. §1311(a), makes the “discharge of a pollutant” unlawful and subjects any person who does so to significant civil and even criminal penalties under §309. 33 U.S.C. §1319. The term “discharge of a pollutant” is broadly defined as “any addition of any pollutant to navigable waters from any point source.” Clean Water Act §502(12), 33 U.S.C. §1362(12). “Pollutant” is also broadly defined and includes sand, dredge spills, rocks and other materials. Id. Section 404 of the Clean Water Act authorizes the Army Corp of Engineers (ACOE) to issue permits allowing the discharge of dredged or fill materials into the “navigable waters” of the United States. “Navigable Waters” are further defined in the Act as “the waters of the United States.” 33 U.S.C. 1362(7). Because a determination whether the site of a proposed development or other activity requiring dredging or filling affects the “waters of the United States” is the driving force in whether a permit is required or whether discharges made without benefit of a permit violate the Act, the definition of that term is of a great deal of importance. Attempts by the ACOE and the U.S. Environmental Protection Agency (EPA) to provide a regulatory guidance as to what bodies of water or areas constitute “waters of the United States” have generated significant controversy, which has played out in all three branches of the federal government and has involved state governments as well as the environmental and business communities. Despite more than a decade of rulemaking, legislation, executive orders and litigation, there is no clear rule and thus no guidance to the regulated and environmental communities. This article describes several recent developments in this controversy—executive order of the president (POTUS), regulatory actions by EPA, a decision by the U.S. Supreme Court (SCOTUS), a lawsuit by several attorneys general and a threatened lawsuit by several environmental groups. It does not deal with the merits of the proposed rule (which have not yet been the subject of any of the many judicial decisions issued in connection with this controversy) or discuss the procedural minutia of the legal arguments and numerous cases. To do so would require an article of even greater length that only legal scholars would enjoy. Rather, what follows attempts to describe the great lengths to which many levels of government have gone to (depending on your point of view) clarify or muddy the waters (of the United States)...MORE