Waters of the United States

WOTUS on hold: Cincinnati court puts brakes on EPA’s water rule

Buckeye Farm News

On Oct. 9, the 6th Circuit Court of Appeals issued an injunction that will remain in effect until the court rules on whether it has jurisdiction to hear the case.

American Farm Bureau has been at the forefront in opposition to the rule, rolling out an aggressive “Ditch the Rule” campaign that called on members at the national, state and local levels to take action against the “Waters of the U.S.” (WOTUS) rule.

Dozens of lawsuits have been filed by states, Farm Bureaus and other agricultural groups against the rule, which would significantly expand federal Clean Water Act jurisdiction. American Farm Bureau President Bob Stallman has called WOTUS “the biggest federal land grab — in terms of power over land use – that we’ve seen to date” because nearly all of the nation’s total acreage would be under EPA’s scrutiny.

Ohio Attorney General Mike DeWine filed a lawsuit in June against EPA and the Army Corps of Engineers saying the WOTUS rule “clearly violates both the language and spirit of the Clean Water Act, which recognizes the rights of states to serve as trustees of their natural resources.”

The day before WOTUS went into effect Aug. 28, a federal judge in North Dakota blocked the rule’s implementation in the 13 states that filed the case before him. The EPA said at the time it would still implement the rule in Ohio and the other 36 states that were outside of that ruling. The Cincinnati appeals court’s ruling, however, means that for now the EPA can’t implement the rule anywhere.

In its decision, the Cincinnati appeals court said its injunction “temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing.”

Stallman said he was pleased the 6th Circuit Court of Appeals recognized the WOTUS rule had “serious flaws” and that two of the three justices were concerned about the basic legality of the rule. “We’re not in the least surprised: This is the worst EPA order we have seen since the agency was established more than 40 years ago. The court clearly understood our arguments,” he said.

It’s expected to take weeks before the Cincinnati appeals court decides whether it has jurisdiction in the WOTUS challenges or whether they have to first be heard at the district court level. If the appeals court has jurisdiction, it’s possible the injunction would remain in effect until the case is heard and fully decided, said Leah Curtis, Ohio Farm Bureau’s director of agricultural law. If the case goes back to the district courts, the injunction would be lifted because the appeals court does not have jurisdiction and the district court would have to decide whether to impose an injunction again.

While Farm Bureau is pleased with the ruling, Stallman cautioned the injunction is only temporary and called on the Senate to follow the House’s lead and pass legislation that forces EPA to withdraw the rule and rewrite it.

“We are confident that the courts will strike down this rule. Unfortunately, we also know stays don’t last forever, and cases like this almost always take years to win,” he said. “So we again ask the Senate to pass legislation to nullify this rule just as the House has already done.”