Legal Battle Persists in Multiple Federal Courts Over Waters of the U.S. Rule

DTN writer Todd Neeley reported yesterday that, “A federal court has been asked to stay a nationwide injunction that effectively makes the 2015 waters of the United States, or WOTUS, rule the law of the land in 26 states. This is according to a motion filed by agriculture groups on Monday in the U.S. District Court for the District of South Carolina.

“On Aug. 16, WOTUS took effect in 26 states after a federal judge issued a nationwide injunction on the EPA rule that delayed the implementation of the Obama-era regulation. The 2015 rule remains on hold in 24 states after a series of district court decisions in North Dakota and Georgia.

“The groups led by the American Farm Bureau Federation filed an appeal with the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia. They are attempting to overturn the South Carolina district court ruling that threw out the EPA’s rule to delay the implementation of the 2015 WOTUS rule by two years until 2020.”

Mr. Neeley indicated that, “In the motion filed on Monday, the farm groups asked for a stay pending that appeal.

“‘The complications of such a patchwork regime are severe,’ the ag groups said. ‘As just one example, what are the agencies to do when a multi-state project implicates earth-moving activities in small, isolated features characterized as wetlands across portions of Missouri, Kentucky and Tennessee? That single project will now be subject to two fundamentally different regulatory regimes — with only the portion in Illinois likely to demand federal permitting (at great expense and even greater delay) for activity in those isolated features. The problem would be multiplied many times over throughout the country in similar cases.'”

The DTN article added, “The groups said ‘irreparable injuries inflicted by the WOTUS rule’s enforcement are immediate. As we have explained, the ability of plaintiffs’ members to plan their projects and organize their affairs is highly sensitive to the scope of the agencies’ regulatory jurisdiction under the Clean Water Act. Allowing the WOTUS rule to come into effect in 26 states will prove enormously disruptive to their operations, and indeed to the entire national economy.'”

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