Clean Water Act, WOTUS

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Issue

The U.S. Environmental Protection Agency and U.S. Army Corps of Engineers finalized a rule in June 2015 that significantly expanded the definition of “waters of the United States,” also known as “navigable waters,” under the Clean Water Act. EPA failed to listen to concerned farmers, ranchers and business owners around the country in crafting its new rule, vastly expanding EPA’s and the Corps’ regulatory authority beyond the limits approved by Congress and affirmed by the U.S. Supreme Court. The rule was challenged in court by dozens of state, municipal, industry and environmental organizations. It was quickly blocked by the 6th Circuit Court of Appeals  based on its legal flaws and the harm it threatened to cause, and was never implemented nationwide.

The 6th Circuit never decided the merits of the 2015 rule, and in early 2018, the U.S. Supreme Court determined that review of the 2015 rule belonged with federal district courts, not with the courts of appeals. Although AFBF agreed with the Supreme Court’s decision, this meant that the 6th Circuit’s nationwide stay would be lifted as its stay was no longer in effect. Meanwhile, the agencies finalized an “Applicability Date Rule” delaying implementation of the 2015 rule until 2020 while the agencies continue to work to repeal and replace the illegal 2015 rule.

AFBF anticipates many hard-fought legal challenges will follow each agency regulatory effort, and at some point, a court could order implementation of the 2015 rule. AFBF is taking the necessary actions to block implementation of the illegal 2015 rule to prevent widespread uncertainty and legal risk for farmers and ranchers while the agencies move forward with possible permanent changes to the definition of “waters of the United States.”

Impact

The 2015 rule grants the federal government regulatory control over virtually any waters – and many land areas that only temporarily hold water – assuming a scope of authority Congress never authorized. It effectively eliminates any constraints the term “navigable” previously imposed on the agencies’   Clean Water Act jurisdiction, and few, if any, waters would fall outside of federal control.

The 2015 rule provides none of the clarity and certainty it promised. Instead, it creates confusion and risk by giving the agencies almost unlimited authority to regulate, at their discretion, any low spot where rainwater collects, including common farm ditches, ephemeral drainages, agricultural ponds and isolated wetlands found in and near farms and ranches across the nation, no matter how small or seemingly unconnected they may be to true “navigable waters.”

The 2015 rule defines terms such as “tributary” and “adjacent” in ways that make it impossible for farmers and ranchers to know whether the specific ditches, ephemeral drains or low areas on their land will be deemed “waters of the U.S.” But these definitions are broad enough to give regulators (and citizen plaintiffs) justification to assert that such areas are subject to Clean Water Act regulation and give the agencies sweeping new authority to regulate land use, which they may exercise at will, or at the whim of a citizen plaintiff.

AFBF Policy

Farm Bureau has significant concerns with the 2015 rule. It expands federal jurisdiction far beyond what was authorized by Congress, resulting in the imposition of burdensome requirements and tremendous uncertainty for farmers and ranchers.

AFBF supports the agencies’ proposal to repeal the 2015 rule and a separate rule to delay its applicability date by two years (Applicability Date Rule). We also urge the agencies to develop a new rule that will provide a clear and reasonable definition of “waters of the U.S.” within the limits set by Congress.

WOTUS Timeline

April 21, 2014

2015 WOTUS rule submitted for public comment

EPA and the Corps publish for public comment a proposed rule defining the scope of waters to be federally regulated under the CWA. According to EPA, this proposal would enhance protection for the nation's public health and aquatic resources, and increase CWA program predictability and consistency by increasing clarity as to the scope of “waters of the United States” protected under the act.

April 28, 2014

It’s time to Ditch the Rule!

AFBF launches the #DitchtheRule campaign to provide key information about the WOTUS rule and its impact to farmers and ranchers around the country, and to encourage them to take action by submitting comments to EPA and Congress.

June 29, 2015

2015 WOTUS rule published

EPA and Corps publish the final rule defining the scope of “waters of the U.S.,” which is immediately challenged in court.

August 27, 2015

North Dakota district court blocks WOTUS implementation

One day before the rule is scheduled to take effect, a federal district court in North Dakota grants a preliminary injunction blocking implementation of the rule in 13 states.

October 9, 2015

Sixth Circuit stays the 2015 WOTUS rule

The U.S. Court of Appeals for the Sixth Circuit issues a nationwide stay of the rule. In its decision, the court states that “the sheer breadth of the ripple effects caused by the Rule’s definitional changes counsels strongly in favor of maintaining the status quo for the time being.”

November 4, 2015

Senate disapproves WOTUS

The Senate passes a joint resolution of disapproval (S.J. Res. 22) stating that EPA and the Corps of Engineers violated the Congressional Review Act by not informing Congress of the impacts of WOTUS on small business. Later, the House also passes the resolution.

December 14, 2015

GAO finds EPA violated law on WOTUS

A ruling by the Government Accountability Office finds that EPA broke the law with its social media and grassroots lobbying campaign advocating for its own WOTUS rule. It becomes abundantly clear that the agency used illegal tactics to generate public support for the rule.

February 28, 2017

President Trump issues executive order to withdraw the 2015 WOTUS rule

Recognizing the legal flaws and agency overreach embodied in the 2015 rule, President Trump directs EPA to reexamine the 2015 rule and consider whether to repeal or revise it.

June 27, 2017

EPA and the Corps move to rescind 2015 rule

The agencies propose a rule to begin a two-step process to review and revise the definition of “waters of the U.S.” The agencies propose to first rescind the stayed 2015 rule to maintain the status quo while they work to develop a new lawful and rational definition of “waters of the U.S.” The agencies initiate a public comment period, which is later extended through September 27, 2017.

June 27, 2017

AFBF seeks comments on 2015 rule withdrawal

The American Farm Bureau issues an Action Alert, urging farmers and ranchers to submit comments to EPA to support the repeal of the 2015 WOTUS rule.

November 22, 2017

Agencies propose a rule to add an applicability date to the 2015 WOTUS rule

EPA and the Corps propose to add an applicability date to the 2015 rule, delaying its implementation for two years while the agencies consider whether to repeal and replace the rule.

January 22, 2018

U.S. Supreme Court decision lifts nationwide stay

The U.S. Supreme Court rules that district courts, not courts of appeals, have jurisdiction to hear challenges to the 2015 rule, as AFBF had argued. However, this meant that the 6th Circuit would dismiss the case and lift the October 2015 nationwide stay.

February 6, 2018

EPA and the Corps publish the Applicability Date Rule

The agencies publish the Applicability Date Rule, delaying implementation of the 2015 rule for two years to ensure continuity and certainty over the definition of “waters of the U.S” while the agencies finalize actions to repeal and replace the 2015 rule. A handful of states and environmental organizations challenge the Applicability Date Rule in separate legal actions, and Farm Bureau seeks to intervene in those lawsuits.

February 7, 2018

AFBF seeks to block implementation of the 2015 rule

Farm Bureau petitions the U.S. District Court for the Southern District of Texas to issue a nationwide stay blocking implementation of the 2015 rule. Supporters of the 2015 rule have vowed to challenge agency regulatory actions every step of the way and threaten the possibility of multiple court injunctions that could allow the rule to come in and out of effect in some parts of the country. If AFBF’s request is successful, it will help farmers and ranchers avoid widespread uncertainty and legal risk while the agencies move forward with permanent changes.

February 28, 2018

Sixth Circuit lifts stay of 2015 WOTUS rule

The U.S. Court of Appeals for the Sixth Circuit officially lifts the nationwide stay of the 2015 rule and dismisses all lawsuits challenging the rule in that court.

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