S.C. judge reinstates WOTUS in 26 states
August 23, 2018
U.S. producers that thought the controversial Waters of the U.S. act was going down in the books as a piece of history, got a slap in the face with a recent ruling, reinstating the act in 26 states. The U.S. District Court for South Carolina ruled that the Trump administration did not follow the proper rulemaking process when rescinding WOTUS, and that the Environmental Protection Agency did not meet requirements for public notice or provide a sufficient comment period.
U.S. District Judge David Norton on Aug. 16 ruled that though different administrations may implement different regulatory priorities, they must comply with procedural requirements. Specifically, the government provided no "reasoned analysis" for suspending the rule and no "meaningful opportunity" for public comment, Norton stated.
The agriculture industry was quick to respond and ramp up the pressure on the Trump administration to repeal the Obama-era regulation that has come "back from the dead."
"The South Carolina court has effectively brought WOTUS back from the dead in 26 states, creating a zombie version of the 2015 rule that threatens the rights of farmers and ranchers across the country," said Scott Yager, the National Cattlemen's Beef Association's chief environmental lawyer.
“The South Carolina court has effectively brought WOTUS back from the dead in 26 states, creating a zombie version of the 2015 rule that threatens the rights of farmers and ranchers across the country.” Scott Yager, NCBA chief environmental lawyer
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Ranchers and farmers have put up the largest fight on the rule that dictates how landowners use even the smallest watering holes on their land. WOTUS expands EPA's enforcement authority to include small areas of water that goes beyond what the federal government has authority to regulate under the Clean Water Act. WOTUS allows the EPA to treat a watering hole or even a drainage ditch as a U.S. waterway, the same as a river.
But producers are ready to take on the challenge of nixing the rule, again. On Aug. 20, a broad coalition of industry groups asked the court to delay implementation of the order while the groups appeal the court's decision.
And earlier this year, a business and agricultural coalition asked the U.S. District Court for the Southern District of Texas for a nationwide stay of the WOTUS rule, arguing that the EPA's repeal-and-replace process likely will be subjected to legal challenges and that "a nationwide preliminary injunction is imperative."
American Farm Bureau Federation President, Zippy Duvall said the court ruling was misguided, and WOTUS is an overbroad, vague, and even illegal law.
"To avoid widespread uncertainty and potential enforcement against ordinary farming activities in these already-uncertain times, we call on the administration to take immediate steps to limit the impact of this dangerous court decision. The U.S. District Court for South Carolina was wrong to invalidate the agency's 'applicability rule' that had simply delayed the effective date of the 2015 WOTUS rule. The delay rule would have maintained regulatory certainty and stability while the administration completes its reconsideration of the 2015 rule and works to develop a new regulation to provide both clean water and clear rules," Duvall said in a statement, adding that the ruling creates enormous regulatory uncertainty.
Duvall said AFBF hopes the administration will take immediate action to limit the scope of the injunction to just South Carolina.
The ruling leaves a patchwork of regulation and uncertainty across the country as courts have issued stays blocking the rule in 24 states. The South Carolina ruling only impacts those states that do not have a legal stay in place blocking WOTUS. Two federal courts — one in North Dakota covering 13 states and one in Georgia covering 11 states — have blocked implementation in 24 states. The rule now applies in 26 states, including Washington, Oregon and California.
"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.,'" AFBF shares on the website.
Oregon Farm Bureau also issued a statement, saying EPA could now force farmers and ranchers to apply for a costly permit to do even the most basic work, such as plowing, planting and applying pesticides and fertilizers on dry fields.
They could also be hit with enormous fines and frivolous lawsuits, Mary Anne Cooper, OFB public policy counsel, said.
"The 2015 WOTUS rule goes far beyond congressional intent and the lawful bounds of the Clean Water Act as articulated by previous Supreme Court decisions," she said.
Norton's decision on the lawsuit brought by 10 activist groups, represented by the Southern Environmental Law Center, was hailed as a victory.
"We are thrilled the court rejected this administration's blatant attempts to undermine safeguards that are critical to our nation's welfare without being accountable to the American people," Geoff Gisler, senior attorney with the law center, said in a statement.
Other environmentalist groups applauding the decision, called it a "sharp rebuke to the Trump administration," and add that it protects streams that one in three Americans rely on for drinking water, despite the fact that other federal legislation is in place to ensure safe drinking water.
EPA has not yet indicated whether the agency will appeal the ruling. F