WOTUS ruling muddies regulatory waters

The controversial Waters of the United States rule lives again, at least in 26 states — including Oregon, Washington and California.

The Environmental Protection Agency and the U.S. Army Corps of Engineers wrote the rule in the hopes of reconciling two separate Supreme Court decisions in cases involving the Clean Water Act. The object was to better define what constitutes “waters of the United States,” which the act gives the federal government authority to regulate.

The 2015 rule extended regulation to isolated bodies of water that have a “significant nexus” with navigable waters of the United States. The rule left it to the bureaucrats to determine that nexus, and that rightly made farmers and ranchers nervous.

The final regulation brought little of the clarity it purported to provide. (The Corps wrote a scathing email to EPA insisting the rule would not withstand a court challenge.)

A number of states and industry groups sued. That led to competing rulings in various district courts, including a stay in 13 states ordered by a district court in North Dakota.

The jurisdictional disputes arising from those lawsuits resulted in a nationwide stay of the rule’s implementation by the 6th U.S. Circuit Court of Appeals in October 2015.

WOTUS was suspended last year by the Trump administration, the president making good on a campaign promise. In February the EPA and the Corps delayed implementation until 2020 while they work to replace the rule and redefine “waters of the United States.” These actions prompted a host of new lawsuits in courts across the country.

Earlier this year the U.S. Supreme Court ruled that lawsuits concerning the rule rightly must originate with district courts. The court’s order lifted the 6th Circuit’s nationwide stay.

With the North Dakota district court’s stay still in force, a court in Georgia granted a preliminary injunction blocking the rule’s implementation of the rule in 11 states contesting WOTUS in that court.

But in yet another case, U.S. District Judge David Norton on Thursday ruled the Trump administration failed to comply with rulemaking requirements under the Administrative Procedure Act in suspending rule.

In 24 states the implementation of WOTUS is stayed, in 26 states the rule is the law of the land. So much for clarity.

It could be years before the judgments on the various claims and the eventual appeals work their way to a decision on the merits by the Supreme Court.

In the meantime, as American Farm Bureau President Zippy Duval said, last week’s ruling “creates enormous regulatory uncertainty and risk for farmers, ranchers and others” in the 26 states.

We worry the feds will use the opportunity to expand their authority in those states over “waters,” and therefore adjacent lands, not previously subject to regulation under the Clean Water Act. Such a designation could have profound and expensive consequences for landowners.

Farmers, ranchers and regulators need clear, unambiguous guidance on the true extent and limit of the government’s authority. Unfortunately, it could be years before they get it.

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