WOTUS Challenge Expected

EPA Finalized Two-Year Delay to Study New Possible Rule

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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The U.S. Environmental Protection Agency is in the process of rewriting the waters of the United States rule. (Photo by Chris Clayton)

OMAHA (DTN) -- Less than 24 hours after the U.S. Environmental Protection Agency finalized a rule to delay the effective date of the waters of the United States, or WOTUS, rule, one state attorney general announced plans to sue.

New York Attorney General Eric Schneiderman announced in a news release on Thursday his intention to sue President Donald Trump's administration as a result.

"The Trump administration's suspension of the Clean Water Rule threatens to eliminate protections for millions of miles of streams and acres of wetlands across the country," he said in a statement.

"Make no mistake: abandoning the Clean Water Rule will mean pollution, flooding, and harm to fish and wildlife in New York and across the country -- undermining decades of work to protect and enhance our water resources. It will also force states like New York to spend more to clean up the pollution from upstream states that refuse to properly safeguard their waters."

Exactly which states will join New York in the lawsuit were not announced.

"The Trump administration's suspension of these vital protections is reckless and illegal," he said.

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EPA Administrator Scott Pruitt on Wednesday finalized a rule to delay the rule's implementation to 2020. The agency is in the process of rewriting the rule and its definition of navigable waters. Currently, the Clean Water Act definitions in place before the 2015 rule are again the law of the land. “Today, EPA is taking action to reduce confusion and provide certainty to America’s farmers and ranchers,” Pruitt said in a statement. “The 2015 WOTUS rule developed by the Obama administration will not be applicable for the next two years while we work through the process of providing long-term regulatory certainty across all 50 states about what waters are subject to federal regulation.”

Last month, the U.S. Supreme Court ruled that multi-state legal challenges to the 2015 rule should be heard at the district court level instead of appeals courts. That essentially ended a nationwide stay on the rule that agriculture and others interests fought out of concerns it would expand federal jurisdiction on farm lands. The SCOTUS ruling effectively ended a national stay on the rule.

Pruitt said a new rule may throw out the significant-nexus standard established by President Barack Obama's EPA. Farm groups and others expressed concern about the standard, because in some states it would have meant nearly every water body would have been in EPA's jurisdiction.

"In doing so, the agencies will consider interpreting the term 'navigable waters,' as defined in the CWA in a manner consistent with the opinion of Justice (Antonin) Scalia in Rapanos (v. U.S.)," Pruitt said.

"It is important that stakeholders and the public at large have certainty as to how the CWA applies to their activities."

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 U.S. Supreme 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.

Pruitt has indicated EPA will consider the plural opinion expressed by the late Scalia in Rapanos, who disagreed that the EPA has far-wider jurisdiction on waters.

"The plain language of the statute simply does not authorize this 'land is waters' approach to federal jurisdiction," Scalia wrote.

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

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Todd Neeley