WOTUS Stay Likely in Place Into 2017

Court Order Extends Waters of US Rule Legal Battle Into Next Year

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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Opponents of the waters of U.S. rule claim the rule would give the EPA and U.S. Army Corps of Engineers broad authority over basic farming practices simply because water may pool somewhere after a rain or fill a ditch. (DTN file photo by Richard Oswald)

OMAHA (DTN) -- The national stay on the waters of the United States rule likely will remain in place and the legal challenge to the rule will continue well into 2017, under a court order Tuesday from the U.S. Court of Appeals for the Sixth Circuit in Cincinnati.

There are a number of briefing deadlines extending into 2017.

Based on the order, oral arguments on the merits of the case likely would take place beyond February 2017.

Numerous legal challenges to the rule have been consolidated by the three-judge panel because of the sheer number of challenges filed.

The Sixth Circuit ruled in April there would be no hearing of the full 23-judge court as requested by a group of petitioners led by the American Farm Bureau Federation.

All motions on the composition of the administrative record are required to be filed by July 8, 2016, with responses due by July 22. Replies are to be filed by July 29.

The petitioners in the case, including agriculture interest groups, states and other industries, will be required to file briefs on the merits by Sept. 30, 2016.

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers are then required to file responding briefs no later than Nov. 30, 2016. Intervenors in the case are required to file briefs by Dec. 14, 2016, with replies to those due by Jan. 20, 2017. All final briefs are due by Feb. 17, 2017.

Oral arguments will be scheduled as soon as practicable after the briefing is complete.

There are 22 petitions for review involving more than 150 petitioners. In addition, "numerous parties" have intervened in the cases, according to court documents.

The rule remains on hold nationally.

The rule, commonly called WOTUS, was meant to clarify EPA and Corps of Engineers authority over areas around waterways where 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 the regulatory agencies broad authority over basic farming practices simply because water may pool somewhere after a rain or fill a ditch.

The battle over the rule continues to play out on several fronts. President Barack Obama vetoed legislation earlier this year that would have sent EPA and the Army Corps back to the drawing board in drafting a rule.

Agricultural and other industry groups were unconvinced legal challenges to the rule should be heard by the Sixth Circuit Court even though judges have indicated in previous rulings they may be sympathetic to those groups that claim the rule is a flawed federal overreach.

A February 2016 ruling by the 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. Instead, the decision led to states requiring farmers across the country to get permits to spray pesticides.

In a petition for a review of the case by the full Sixth Circuit, Farm Bureau and other groups said the current case on WOTUS could be subject to an appeal because the justices did not reach a consensus on the National Cotton Council case.

Todd Neeley can be reached at todd.neeley@dtn.com

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Todd Neeley