WOTUS Case Continues

EPA Proposes Rewrite of Controversial Rule

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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The U.S. Supreme Court denied a request by the Trump administration to put a waters of the United States case on hold. (Photo by Elaine Shein)

OMAHA (DTN) -- The U.S. Supreme Court will consider whether the U.S. Court of Appeals for the Sixth District is the proper venue for legal challenges to the waters of the United States, or WOTUS, rule, even though President Donald Trump's administration may rewrite the rule.

The high court on Monday rejected the administration's request to put the case on hold, in light of the U.S. Environmental Protection Agency's current review.

During the past two years since the EPA finalized the rule now hung up in federal court, agriculture and other industry groups along with state governments across the country alleged the rule expanded federal jurisdiction on waters not traditionally protected by the Clean Water Act.

Legal challenges have been made as to whether the court in Cincinnati is the proper venue.

The president signed an executive order on Feb. 28 designed to essentially kill the rule. On March 6, EPA Administrator Scott Pruitt directed a rewrite of the rule. In that document, Pruitt hinted a new rule may include the removal of the so-called "significant nexus" test. Agriculture and other interest groups cried foul, claiming the rule could lead to even dry areas being considered as jurisdictional waters.

A rewrite may include the opinion of Justice Antonin Scalia, Chief Justice John Roberts, as well as Justice Clarence Thomas and Justice Samuel Alito in the Supreme Court case Rapanos v. United States.

The 2006 Rapanos case involved a Michigan landowner who filled in a wetland without a permit. A circuit court ruled that because the wetland was adjacent to a tributary, the wetland was considered to be a jurisdictional water. The high court disagreed with the lower court and a plurality of the high court ruled the Clean Water Act did not give broad authority over all waters.

In writing the WOTUS rule, however, President Barack Obama's EPA clung to the opinion of Justice Anthony Kennedy who suggested a significant nexus test is valid.

Now, EPA is considering the plurality opinion led by Scalia that disagreed that the agency has wider jurisdiction.

Also on Monday, a group of Democratic senators asked Pruitt in a letter to provide assurance that a new rule would continue to protect drinking water. The letter is signed by Sens. Corey Booker, Brian Schatz, Ben Cardin, Chris Van Hollen, Sheldon Whitehouse, Kirsten Gillibrand, Richard Blumenthal, Jack Reed, Margaret Wood Hassan, Jeff Merkley and Edward Markey.

"Section 3 of Executive Order 13778 directs EPA and the Army Corps of Engineers to consider weakening the rules significantly, based on one opinion in Rapanos v. United States," the letter said.

"A majority of the Supreme Court rejected that opinion, and it does not reflect the body of precedent implementing the Clean Water Act. Therefore, we are concerned of the threat that Executive Order 13778 poses to critical wetlands and to streams, including streams that feed into the drinking water supplies of 117 million Americans."

The senators closed the letter by saying they are concerned that revising the rule "will only increase uncertainty amongst farmers, developers and other stakeholders that want clarity about what water bodies the law protects from pollution."

WOTUS was issued initially in 2015 as a way to clarify federal authority on areas around waterways where the federal government has authority to either require a federal permit or stop any activity that would disturb the waterway.

Yet, under the detailed description by EPA in the Federal Register and the unclear term "significant nexus" for a waterway, EPA maps have suggested nearly any waterway in the country could come under federal jurisdiction.

The rule never went into effect as it was challenged in court by at least 25 states and business lobbies, including several farm organizations.

Withdrawing the rule essentially reboots the process of defining waters of the U.S. for federal authorities.

Besides the American Farm Bureau Federation, agriculture groups that joined lawsuits seeking to overturn the WOTUS rule included the National Pork Producers Council, American Forest and Paper Association, National Corn Growers Association, Matagorda County Farm Bureau, National Alliance of Forest Owners, National Cattlemen's Beef Association, Public Lands Council, Texas Farm Bureau and the U.S. Poultry and Egg Association.

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

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Todd Neeley