WOTUS Rule Back On (For Now)

In the constant back and forth of numerous court cases across the country, regulatory action, and congressional posturing, it can be hard to keep track of what waters the EPA has jurisdiction over any more. The EPA generally has power over "Waters of the United States" or "WOTUS." WOTUS meant one thing in 2014, changed significantly in 2015 under President Obama, and has since been limited, appealed, and stayed by various federal court decisions. President Trump has directed the EPA to repeal and replace the definition of WOTUS and the EPA is currently accepting public comment regarding what WOTUS should mean. 

In the meantime, our federal courts are still at work. Most recently, a federal district court in South Carolina issued an order striking a rule that would delay implementation of the 2015 WOTUS definition. The order has the effect of immediately reviving and implementing the controversial WOTUS rule in 26 states. The 2015 WOTUS rule already has been blocked in the other 24 states. (In June, a district court in Georgia issued a preliminary injunction against implementation of the rule in Alabama, Florida, Georgia, Indiana, Kansas, Kentucky, North Carolina, South Carolina, Utah, West Virginia and Wisconsin. A North Dakota district court did the same for Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming in August 2015.)

The American Farm Bureau (AFB) and other agricultural industry groups filed a motion with the South Carolina court to stay its order striking the rule delaying implementation of the 2015 rule. Put another way, the AFB is asking the court not to revive the 2015 WOTUS rule just yet. 

What's the big deal? In short, the 2015 WOTUS rule would pull more waters under federal jurisdiction. This could mean more farmers with jurisdictional wetlands on their property, limiting the farmers' ability to productively use that land. Environmental groups applaud the South Carolina court decision, reasoning the 2015 WOTUS rule protects threatened wetlands. The battle is far from over.