OMAHA
(DTN) -- The national stay on the 2015 waters of the United States (WOTUS) rule
is expected to be lifted following a U.S. Supreme Court ruling Monday that any
legal challenges to the rule must take place in federal district courts and not
at the appellate level.
However,
that doesn't necessarily mean the previous administration's rule will take
effect. That's because the U.S. Environmental Protection Agency proposed a rule
to put the brakes on the WOTUS rule prior to the Supreme Court's ruling,
putting in place a two-year delay on the effective date while EPA undertakes a
broader rewrite.
EPA
spokesperson Liz Bowman offered the following statement on the Supreme Court
decision: "The Trump administration saw this decision coming and put a
plan in place to level the playing field and ensure certainty for states and
regulated community. The Trump administration's stay of the 2015 WOTUS rule will
very likely be complete before any change in court jurisdiction can be
finalized, or the Obama administration's overreaching definition of WOTUS can
be implemented."
Despite
EPA's efforts to change course, starting in 2017, some interest groups that opposed
the 2015 rule are hesitant to say the fight has ended.
Ellen
Steen, general counsel of the American Farm Bureau Federation, said in a
statement the group continues to keep its eye on the rule.
"The
U.S. Supreme Court ruled correctly today that federal district courts -- not
federal courts of appeals -- have jurisdiction to review the 2015 waters of the
U.S. rule," she said.
"This
Supreme Court decision brings greater clarity to an important issue that has
bogged down the litigation over this and other Clean Water Act regulations for
years. That is a positive result, but it also creates uncertainty and confusion
in the short term, because the Sixth Circuit must soon lift its nationwide stay
of the 2015 rule."
The
U.S. Court of Appeals for the Sixth Circuit in Cincinnati issued a national
stay of the rule in response to lawsuits across the country and lingering
questions about the rule's legality.
Agriculture,
other industry groups, and state governments across the country alleged the
Obama administration's rule expanded federal jurisdiction to waters not
traditionally protected by the Clean Water Act. Even prior to the completion of
the rule, farmers and ranchers faced uncertainty as to which waters were
considered jurisdictional. So far, neither Congress nor the EPA has been able
to make the law more understandable.
The
water rule was touted by the EPA as a means to clarify which areas around
waterways the federal government has authority to either require a federal
permit or stop any activity that would disturb the waterway. Opponents claim
the rule would give regulatory agencies broad authority over basic farming
practices simply because water may pool somewhere after a rain or fill a ditch.
"At
this time, the Environmental Protection Agency has not yet finalized its
proposed rule to delay the application of the unlawful and dangerous 2015 WOTUS
rule while the agency considers whether to permanently repeal that rule,"
Steen said.
"AFBF
is considering its options to avoid application of the 2015 rule while EPA
moves forward with an appropriate long-term solution that provides clear rules
and clean water without requiring a federal permit to plow a field."
Also
last year, EPA proposed an interim rule to return the water rule back to its
pre-2015 status. The interim rule came about as a result of President Donald
Trump's Feb. 28, 2017, executive order calling for a review of the WOTUS rule.
The EPA
announced it would attempt to better define "navigable waters" in
what is expected to be a two-part effort. The second part of the agency's plan
includes then re-writing the rule. As part of that effort, the agency reached
out to governors in all 50 states to seek input.
The
Supreme Court's ruling came on a petition by the National Association of
Manufacturers. The group challenged the Sixth Circuit Court of Appeals' ruling
that it is the proper court to consider the cases.
A
February 2016 ruling by the appeals court indicated a split among three
justices about whether it was correct to use a pesticide sprayer case, National
Cotton Council v. EPA, as a precedent for determining questions of
jurisdiction. In the 2009 National Cotton Council case, the Sixth Circuit threw
out an EPA rule that would have exempted pesticides sprayed on water from the
Clean Water Act rules.
That
decision led to states requiring farmers across the country to get permits to
spray pesticides.
Agricultural
and other industry groups were unconvinced legal challenges to the rule should
be heard by the Sixth Circuit even though judges in that court have indicated
in previous rulings they may be sympathetic to those groups that claim the rule
is a flawed federal overreach. Opponents of the rule fear that if legal
challenges to the WOTUS rule are tried in the wrong jurisdiction, any rulings
could face appeals.
National
Association of Manufacturers Senior Vice President and General Counsel Linda
Kelly said the group will continue to push for a new rule.
"For
three years, the Manufacturers' Center for Legal Action has fought the waters
of the United States rule, which seeks to regulate a broad swath of land across
the country, even some that isn't wet," she said in a statement.
"We
are fighting this overreaching and unfair rule in court because it threatens
manufacturing jobs and fails to take a balanced approach to protecting clean
water. We will continue to advocate a new rule that conforms to the Clean Water
Act, protects our nation's waters and provides clarity for manufacturers and
landowners around the country."