WOTUS Repeal Faces Legal Challenges
BY DTN/Progressive Farmer
via KTIC (NE) - November 5, 2019
OMAHA (DTN) — The agriculture industry celebrated the 2015 waters of the United States, or WOTUS, rule repeal that EPA finalized in recent weeks. But an attorney with the Pacific Legal Foundation and an official with a major agriculture group said farmers and ranchers still face regulation under the Clean Water Act.
On Oct. 22, 2019, the EPA and the U.S. Army Corps of Engineers finalized the repeal of the Obama-era rule that agriculture and other industry groups and states had fought in court for years.
The repeal reverts regulations to the 1986 version of WOTUS while the EPA continues to rewrite the definition. The 2015 rule was opposed by critics as an example of gross federal overreach, yet the 1986 rule also had its share of concerns.
“The 1986 regulations re-imposed by EPA this month are broader than the 2015 regulations the agency just repealed,” said Tony Francois, senior attorney with the Pacific Legal Foundation.
Francois is the lead attorney in a lawsuit filed by the New Mexico Cattle Growers Association on Oct. 22, 2019. The lawsuit in the U.S. District Court for the District of New Mexico attempts to protect ranchers from what Francois said is a broader WOTUS definition under the 1986 rule.
“The 1986 version asserts control over all non-navigable tributaries and all ‘neighboring’ non-navigable wetlands,” he said. “The 2015 version merely asserts control over most of these features.”
Don Parrish, senior director of regulatory relations for the American Farm Bureau Federation, said the next year will be important for agriculture when it comes to supporting EPA’s current efforts to rewrite the rule.
“The pre-2015 regs are problematic,” he said. “They are expansive and lack the clarity we are hopeful the new regs will provide. We have two major goals — killing the 2015 rules so they will never come back and a new rule that provides significantly more clarity than the ’86 regs. To ensure we achieve both goals, we understand that we will have to go back to something before EPA finishes the new regs. If the process goes as we expect and hope, both the 2015 and the ’86 regs and guidance will be history soon.”
Parrish said the main concern is, if the EPA’s repeal rule doesn’t hold up in court, it has the potential to bring the 2015 rule back from the dead.
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