AFBF Seeks National WOTUS Injunction

Series of Legal Actions has Left Confusion on Water Rule

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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As a result of several court decisions, the waters of the United States rule remains in flux. (DTN file photo by Chris Clayton)

OMAHA (DTN) -- The waters of the United States saga continues, as the American Farm Bureau Federation asked a federal court in Georgia on Wednesday to issue a national injunction on the 2015 WOTUS rule.

A series of ongoing court actions has left the rule in a state of chaos, as currently 28 states are exempted and 22 are not.

The AFBF is leading a coalition of business groups in asking the U.S. District Court for the Southern District of Georgia in Brunswick to extend a previous injunction on 11 states to the remaining 22 states where the rule is in effect.

Most recently, Iowa was added to the list of now 28 states not under the jurisdiction of the rule thanks to a ruling by the U.S. District Court for the District of North Dakota on Sept. 18.

A South Carolina court recently ruled EPA violated the Administrative Procedures Act in finalizing a suspension rule that delayed WOTUS until 2020. As a result, the 2015 rule took effect in Iowa and a number of other states. Currently, the EPA is preparing a new rule redefining waters of the United States.

WOTUS is now on hold in 28 states: Iowa, Texas, Mississippi, Louisiana, Georgia, Alabama, Florida, Indiana, Kansas, North Carolina, South Carolina, Utah, West Virginia, Wisconsin, Kentucky, South Dakota, Missouri, Alaska, North Dakota, New Mexico, Idaho, Arizona, Nebraska, Montana, Arkansas, Nevada, Colorado and Wyoming.

The 2015 rule now is in effect in 22 states: Illinois, California, Washington, Oregon, Tennessee, Vermont, Virginia, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, Minnesota, Michigan, Massachusetts, Maryland, Maine, Hawaii, Delaware and Connecticut.

The North Dakota court is one of several district courts where WOTUS lawsuits were filed in 2015

An appeals court in Cincinnati had issued a national stay on the rule in 2015. The national stay ended when the U.S. Supreme Court ruled that challenges to WOTUS belong in district courts.

Recently, a Texas court issued a temporary injunction against the WOTUS rule in Texas, Mississippi and Louisiana after the Texas attorney general's office told the U.S. District Court for the Southern District of Texas in Galveston it was ready to appeal to a higher court.

On Aug. 20, agriculture groups led by the AFBF filed an appeal with the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia. They are attempting to overturn the South Carolina district court ruling that threw out the EPA's rule to delay the implementation of the 2015 WOTUS rule by two years until 2020.

AFBF's motion was prompted by another court's decision in August striking down an Environmental Protection Agency rule that had delayed application of the WOTUS rule nationwide pending the agency's ongoing reconsideration of the rule.

In the AFBF motion filed on Wednesday, the group said the multiple court rulings have created confusion.

"This is a deeply troubling state of affairs," the motion said. "A rule this fundamental to the (Clean Water Act's) regulatory scheme should not apply in a patchwork manner."

Read the new court motion here: https://www.fb.org/…

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

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(SK/AG)

Todd Neeley