WOTUS woes hit farmers in 26 states

Federico Mansilla
Agosto 19, 2018

The U.S. District Court in SC ruled against the Trump administration Thursday (Aug. 16) for delaying the Obama-era Waters of the United States rule, the Washington Examiner reported.

President Donald Trump delayed implementation of the rule, which had been developed by the Obama administration, when he entered office.

After EPA finalized its rule to delay WOTUS in February, several environment groups and states sued the agency, arguing it had rushed the rulemaking process.

"The Suspension Rule typified this administration's disregard for the environment, the rule of law, and public input", said Steven Goldstein, legal fellow at Defenders of Wildlife. The SELC is appealing a decision in the Southern District of Georgia that has caused the Clean Water Rule to be stayed In Alabama, Georgia, North Carolina and SC.

Norton wrote in his ruling that the agencies" "refusal to consider or receive public comments on the substance of the WOTUS Rule ... did not provide a "meaningful opportunity for comment, '" as required by the Administrative Procedures Act.

The ruling ends the Environmental Protection Agency and U.S. Army Corps of Engineers' suspension of clean water protections under the Clean Water Act. As these decisions should have made clear, the agencies needed to adopt a new regulatory definition of "waters consistent with the CWA's text and broader federalism princples, yet the Bush Administration balked at taking any such step, lest they provoke an unnecessary environmental controversy".

On this basis the court issued a nationwide injunction against the suspension rule. The CWA prohibits the unpermitted discharge of pollutants, including the deposit of soil or fill material, in "waters of the United States".

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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 litigation ensued, resulting in a trip to the Supreme Court to resolve where legal challenges to the WOTUS rule should be filed, and an injunction against the WOTUS rule's enforcement in 24 states which had sought to challenge the rule.

Scott Yager, chief environmental counsel for the National Cattlemen's Beef Association, said the ruling "effectively brought WOTUS back from the dead in 26 states, creating a zombie version of the 2015 rule that threatens the rights of farmers and ranchers across the country". "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".

These regulations will increase business uncertainty and farming costs.

The EPA can not delay the rule "by invoking general rulemaking authority under a different statutory provision", of federal clean air law, the court said in the ruling. "We also urge the administration to move as quickly as possible to a final decision to repeal the 2015 rule".

The American Farm Bureau Federation has a completely different take, calling the ruling "misguided" and the WOTUS rule itself "overbroad, vague and illegal".

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