Waters of the U.S. Rule May Soon Have Legal Answers from Court Decisions

DTN writer Todd Neeley reported late last month that, “Expected court decisions on the 2015 waters of the United States, or WOTUS, rule early in 2019 likely will clear up any confusion farmers, ranchers and other landowners have on jurisdictional questions.

“As a result of several ongoing lawsuits, the 2015 rule remains in effect in 22 states and is on hold in 28 states.

“Don Parish, senior director of regulatory relations for the American Farm Bureau Federation, told DTN the split has created uncertainty in the countryside.”

The DTN article noted that, “Parish said his group expects constitutional questions on the 2015 rule to be answered soon.

“AFBF is party to lawsuits where a court could declare the 2015 rule unconstitutional, he said. That is likely to come before an EPA proposal to abolish the 2015 rule altogether.

“AFBF and others have asked district courts in North Dakota, Georgia and Texas to declare the 2015 rule unconstitutional, on the grounds the EPA failed to follow the Administrative Procedures Act by including in the final rule distances from navigable waters in determining whether wetlands are jurisdictional. Ahead of finalizing the 2015 rule, the EPA did not offer a chance for public comment on those distances.”

Mr. Neeley pointed out that, “In addition, Parish said, a court may rule that the 2015 rule was ‘so broad and vague’ that it violates due process.”

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