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with the Supreme Court’s decision, this meant that the 6th Circuit’s nationwide stay would be lifted as its stay was no longer in effect.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.

The U.S. District Court for the District of South Carolina struck down the Trump administration’s rule delaying implementation of the Obama WOTUS rule nationwide.  While the court expressly applied its ruling nationwide, district courts in North Dakota and Georgia had previously blocked the Obama rule in 24 states. Later, the North Dakota court added Iowa to its list of states where the Obama rule is blocked, and a district court in Texas added the states of Texas, Louisiana and Mississippi. 

The number of states where the WOTUS rule has been temporarily blocked by the courts has risen to 28, leaving the 2015 WOTUS rule in place in 22 states.[1]  AFBF is deeply involved in the ongoing legal battles and is using all available means to block implementation of the illegal 2015 rule.


[1] The states where the 2015 WOTUS rule is currently in place are California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia and Washington. Four of these (OH, OK, MI and TN) have requested court injunctions but have not yet been granted relief.

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, widespread uncertainty and legal risk for farmers and ranchers.

AFBF strongly supports the agencies’ proposal to repeal the 2015 rule. AFBF also urges the agencies separately 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.

June and July 2015

Dozens file legal challenges to the rule, AFBF coalition files suit in Texas

In the following weeks, dozens of states, industry groups and environmental organizations file lawsuits in federal district and appellate courts challenging the lawfulness of the rule. AFBF, Texas Farm Bureau and a broad coalition of agricultural and other industry organizations file a lawsuit in the Southern District of Texas.

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.

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 a result, when the Supreme Court issues its “mandate”—in about 30 days—the 6th Circuit will be forced to dismiss the case and lift its October 2015 nationwide stay of the rule.

February 6, 2018

EPA and the Corps publish delay rule, which is immediately challenged

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 continue efforts to repeal and replace the 2015 rule. A handful of states and environmental organizations challenge the Applicability Date Rule in separate legal actions. AFBF and its coalition partners intervene in defense of the delay rule.

February 7, 2018

AFBF asks Texas district court for nationwide injunction against the 2015 rule

The AFBF litigation coalition petitioned 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, threatening multiple court injunctions causing the rule to come in and out of effect multiple times in various parts of the country.

February 28, 2018

Sixth Circuit lifts stay of 2015 WOTUS rule

Complying with the Supreme Court’s mandate, 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.

June 8, 2018

Georgia district court blocks WOTUS in an additional 11 states

Reacting to the lifting of the nationwide stay, a federal district court in Georgia issues a preliminary injunction blocking WOTUS in the 11 states that sued in that court. Now a total of 24 states benefit from temporary court orders blocking the rule.

June 8, 2018

AFBF files amicus brief supporting permanent invalidation of the WOTUS rule

AFBF and its coalition file an amicus brief in support of 13 states challenging the rule before the federal district court in North Dakota. This court has already temporarily blocked the WOTUS rule, and the parties are now seeking a final decision on the unlawfulness of the rule.

June 29, 2018

AFBF joins Georgia case challenging the WOTUS rule

AFBF and the Georgia Farm Bureau join a broad coalition intervening as co-plaintiffs in the ongoing lawsuit by 11 states challenging the 2015 WOTUS rule in Georgia.

July 12, 2018

EPA releases supplemental notice on repeal of the 2015 WOTUS rule

EPA and the Corps publish a supplemental notice to clarify their rationale for proposing to permanently repeal the 2015 rule.

August 16, 2018

Court strikes delay rule, reviving WOTUS rule in 26 states

The U.S. District Court for the District of South Carolina invalidates the Trump administration’s nationwide delay of the WOTUS rule. As a result of the court’s ruling, the 2015 WOTUS rule becomes immediately effective in the 26 states not already covered by court injunctions.

August 20, 2018

AFBF seeks reprieve from order reviving flawed WOTUS rule

AFBF and its coalition ask the district court in South Carolina to stay its order striking the EPA “delay rule.” Without a stay, the court order has the effect of immediately reviving and implementing the controversial WOTUS rule in 26 states.

August 31, 2018

AFBF coalition, state plaintiffs seek permanent invalidation of WOTUS rule by Georgia court

The AFBF coalition and the 11 states challenging the WOTUS rule in Georgia file motions seeking permanent invalidation of the rule. Detailed briefs describe the numerous fatal flaws of the 2015 rule, including that it unlawfully reads the word “navigable” out of the Clean Water Act, is unconstitutionally vague, and adopts irrational and overbroad definitions of “tributaries” and “adjacent” waters.

September 12, 2018

Texas court grants stay for additional three states, but denies nationwide relief

Acting on motions filed in February, the district court in Texas temporarily blocks the 2015 rule in Louisiana, Mississippi and Texas—but declines at this time to grant nationwide relief.

September 26, 2018

AFBF asks Georgia court to expand WOTUS stay to remaining states

Even while merits briefing is ongoing, the AFBF coalition asks the Georgia district court to extend its previous injunction to the remaining 22 states where the rule is now in place. In the wake of the South Carolina court’s order invalidating EPA’s delay of the 2015 rule, courts have temporarily blocked the WOTUS rule in four additional states—leaving farmers, ranchers and others in 22 states still subject to the rule.

September 28, 2018

AFBF secures aggressive schedule for briefing before Texas court

In separate hearings on September 20 and 28, the district court judge in Texas declines to grant nationwide temporary relief from the WOTUS rule, but grants an aggressive schedule for briefing on the merits of the rule. Plaintiffs will file their opening arguments for permanent invalidation of the WOTUS rule on Oct. 18, and briefing will conclude by Dec. 21.

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