Tag Archives: wotus

The Ag Law Harvest

Written by: Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

As our readers can probably tell by now, there has been a lot happening in the agricultural law world over the past couple of weeks.  From the Lake Erie Bill of Rights going on the ballot in Toledo to a new court decision on wedding barns, we’ve done our best to keep you in the know.  While the legislative sessions in Congress and the Ohio General Assembly have started to shift into a higher gear, covering those bills will take up a lot of space, so be on the lookout for a legislative update soon.

For now, here’s our latest gathering of agricultural law news that you may want to know:

Yep, more WOTUS.  The U.S. EPA has announced new public hearings regarding its proposed revised definition of Waters of the United States.  The hearing will be held on Wednesday, February 27th and Thursday, February 28th at the Reardon Convention Center in Kansas City, Kansas.  For those who wish to provide input, but are unable to make the trip, the U.S. EPA will accept written comments from the public online at http://www.regulations.gov with the docket ID number: EPA-HQ-OW-2018-0149.  The online comment portal will accept new submissions until April 14th.  The text of the proposed rule, which the U.S. EPA released just in time for Valentine’s Day, is available on the online comment portal page as well as in the Federal Register.  For more information about either attending the meeting or submitting a comment to the U.S. EPA, visit the Federal Register’s webpage here.  For more information about WOTUS rulemaking, see our most recent WOTUS blog post, or visit the U.S. EPA’s webpage here.

Conservation funding for federal lands could be restored under U.S. Senate bill.  In a sign of bipartisanship, the U.S. Senate passed the National Resources Management Act by a vote of 92-8.  If the House approves and it receives the President’s signature, the bill would modify a number laws addressing the management and conservation of federal lands, and would also restore funding to the Land and Water Conservation Fund, which had expired last fall.  This fund primarily supports the protection of federal public lands and waters, but it also promotes voluntary conservation on private lands and awards grants to states for the acquisition and development of parks and outdoor recreation sites.  Also in the bill are two specific changes of note for Ohio.  First, section 6004(c) of the bill would increase the cap on total spending for the Ohio & Erie National Heritage Canalway from $10 million to $20 million.  Second, section 2502 of the bill would extend the Lewis and Clark National Historic Trail from Illinois to Pennsylvania, which will include portions in Ohio.  You can read the full text of the bill and see the official analyses on Congress’s website here.

FFA charter amendments approved by Congress and the President.  Citing issues arising from the U.S. Department of Education’s not filling seats on the National FFA Board of Directors, the National FFA sought an amendment to its charter.  Congress originally granted the charter in 1950, and any changes to the charter must be done so by an act of Congress.  One of the major changes sought by National FFA was a reduction in the number of seats on the board of directors that must be appointed by the Department of Education.  By not filling all of the seats on the Board of Directors, the National FFA faced difficulty making decisions because it often could not meet its quorum for meetings.  The new amendments reduce the organization’s reliance on an appointment to its board of directors by the U.S. Department of Education, which increases the organization’s ability to self-govern.  You can read the text of the bill on Congress’s website here, or visit the National FFA’s webpage on frequently asked questions about the charter revision here.

The PACT Act is back.  The Prevention of Animal Cruelty and Torture Act has been reintroduced into the U.S. House of Representatives.  The act would allow for significant fines and up to seven years in prison for those convicted of animal crushing, creating animal crushing videos, or distributing animal crushing videos.  The bill defines crushing as “actual conduct in which one or more living non-human mammals, birds, reptiles, or amphibians is purposely crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury.”  However, the bill does contain exceptions for conduct that is related to “customary and normal veterinary, agricultural husbandry, or other animal management practice[s];” “the slaughter of animals for food;” legal hunting, trapping, and fishing activities; research; defense of a human; and euthanizing an animal.  Many in the agriculture community have opposed the bill, arguing that it is duplicative in light of animal protections created by the states and that it risks courts and juries interpreting the language too broadly.  At this time, the bill has only been introduced in the U.S. House and referred to the Judiciary Committee.

Nebraska wind farms sue to enforce contract and keep utility from flying off into the sunset.  Three Nebraska windfarms in a power supply contract with the Nebraska Public Power District (NPPD) have filed suit to prevent the utility from backing out of the contract.  The wind farms filed a complaint in federal court in Nebraska on January 30th, alleging that NPPD expressed its intention to terminate a power purchase agreement, and that doing so would be wrongful.  The complaint explains NPPD’s position that the wind farms materially violated the contract by investing in other businesses and operations.  The plaintiffs disagree that there was a breach, but say that even if there was, NPPD cannot terminate the contract because it knew of the transactions.  The plaintiffs also note that NPPD has eminent domain power.  They argue that by terminating the contract, NPPD knows that the wind farms will likely enter default with creditors.  This could allow NPPD to acquire the rights of the wind farms through a foreclosure sale or eminent domain.  To prevent NPPD from terminating the contract, the parties requested, and were granted, a temporary restraining order until March 1st that requires NPPD to honor the contract.  The case is cited as Laredo Ridge Wind, LLC v. Nebraska Pub. Power Dist., No. 8:19-cv-45 (D. Neb.).

Wisconsin Supreme Court asked to decide scope of agency power to regulate agriculture.  A Wisconsin court of appeals has certified two cases to the Wisconsin Supreme Court, asking the court to determine the extent of the Wisconsin Department of Natural Resource’s authority to regulate agriculture in order to protect groundwater.  A certification represents a lower court seeking guidance on an issue that the lower court believes it is not in the best position to decide without knowing what the higher court thinks.  These cases are important for Wisconsin because they pertain to a law passed in 2011 that restrained authority of state agencies to act beyond express grants of authority by the state legislature.  Specifically, the cases ask whether the Wisconsin DNR can impose conditions on issuing a permit beyond the conditions stated in a statute.  The affected parties in the cases range from dairy farms to manufacturers and from food processors to municipal water utilities.  Environmental groups hope that state agencies may take a more expansive look at environmental impacts when reviewing permit applications.  The two certification orders are available here and here.

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Long-awaited WOTUS rewrite published

Written by Ellen Essman, Senior Research Associate

Well, it’s been a while since we’ve written about the Waters of the United States (WOTUS), so everyone had to know we were overdue for WOTUS news!

On December 11, 2018, the Environmental Protection Agency (EPA) and the Army Corps of Engineers announced the Trump Administration’s so-called “straightforward” new definition of WOTUS under the Clean Water Act (CWA).  Publication of the proposed rule was delayed due to the federal government shutdown in December and January.  The proposed rule was finally published in the Federal Register on February 14, 2019.  Interested parties can comment on the proposed WOTUS rule until April 15, 2019.  Information on how to comment can be found here, and the proposed rule in its entirety can be found here.

Out with the old WOTUS…

The new definition would replace the 2015 definition of WOTUS promulgated under the Obama Administration.  The 2015 definition is codified at 33 CFR 328.  The 2015 definition defined waters of the United States as:

  1. All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
  2. All interstate waters including interstate wetlands;
  3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:
    • Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
    • From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
    • Which are used or could be used for industrial purpose by industries in interstate commerce;
  4. All impoundments of waters otherwise defined as waters of the United States under the definition;
  5. Tributaries of waters identified in paragraphs (a) (1) through (4) of this section;
  6. The territorial seas;
  7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a) (1) through (6) of this section.
  8. Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with the EPA.

The 2015 definition also noted that “[w]aste treatment systems, including treatment ponds or lagoons designed to meet requirements of CWA…are not waters of the United States” (emphasis added).

…In with the new WOTUS

The Trump Administration’s new proposed definition of WOTUS would make significant changes to the definition listed above.  Under the new proposed rule, section (a) of §328.3 would define waters of the United States as:

  1. Waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including the territorial seas and waters which are subject to the ebb and flow of the tide;
  2. Tributaries of waters identified in paragraph (a)(1) of this section;
  3. Ditches that satisfy any of the conditions identified in paragraph (a)(1) of this section, ditches constructed in a tributary or that relocate or alter a tributary as long as those ditches also satisfy the conditions of the tributary definition, and ditches constructed in an adjacent wetland as long as those ditches also satisfy the conditions of the tributary definition;
  4. Lakes and ponds that satisfy any of the conditions identified in paragraph (a)(1) of this section, lakes and ponds that contribute perennial or intermittent flow to a water identified in paragraph (a)(1) of this section in a typical year either directly or indirectly through a water(s) identified in paragraphs (a)(2) through (6) of this section or through water features identified in paragraph (b) of this section so long as those water features convey perennial or intermittent flow downstream, and lakes and ponds that are flooded by a water identified in paragraphs (a)(1) through (5) of this section in a typical year;
  5. Impoundments of waters identified in paragraphs (a)(1) through (4) and (6) of this section; and
  6. Adjacent wetlands to waters identified in paragraphs (a) (1) through (5) of this section.

Every other type of water in this proposed definition relates back to the waters described in (1), which the EPA describes as “traditional navigable waters.” For example, tributaries that are WOTUS would be those bodies of water that empty into or connect to traditional navigable waters.  Similarly, lakes and ponds are WOTUS under the definition if they are traditional navigable waters themselves, or if they flow regularly into traditional navigable waters.  An EPA fact sheet, available here, is very helpful in understanding what is included under the proposed WOTUS definition. It describes the six proposed categories of WOTUS in layman’s terms, and provides examples of bodies of water that fall under each category.

The newly proposed rule also greatly expands the list of waters that are not waters of the United States in section (b):

  1. Waters or water features that are not identified in paragraphs (a)(1) through (6) of this section;
  2. Groundwater, including groundwater drained through subsurface drainage systems;
  3. Ephemeral features and diffuse stormwater run-off, including directional sheet flow over upland;
  4. Ditches that are not identified in paragraph (a)(3) of this section;
  5. Prior converted cropland;
  6. Artificially irrigated areas, including fields flooded for rice or cranberry growing, that would revert to upland should application of irrigation water to that area cease;
  7. Artificial lakes and ponds constructed in upland (including water storage reservoirs, farm and stock watering ponds, and log cleaning ponds) which are not identified in paragraph (a)(4) or (a)(5) of this section;
  8. Water-filled depressions created in upland incidental to mining or construction activity, and pits excavated in upland for the purpose of obtaining fill, sand, or gravel;
  9. Stormwater control features excavated or constructed in upland to convey, treat, infiltrate or store stormwater run-off;
  10. Wastewater recycling structures constructed in upland, such as detention, retention and infiltration basins and ponds, and groundwater recharge basins; and
  11. Waste treatment systems.

Notable differences between 2015 rule and proposed rule

Just glancing at the two rules, it is obvious that there are major differences in how WOTUS is defined.  EPA has a useful fact sheet (highly recommended reading) outlining the “key proposed changes” and how they compare to the 2015 WOTUS rule, as well as to the pre-2015 WOTUS rule.  Overall, it appears that the number of water bodies considered WOTUS would decrease under the proposed rule.  EPA argues that limiting the number of waters classified as WOTUS would give more power to the states to regulate waters as they see fit.

One major change is that under the proposed rule, tributaries that are “ephemeral” (meaning they’re not around for a great deal of time, and/or may be there because of rainfall or snowmelt, etc.), are not considered to be WOTUS.  Similarly, the number of ditches considered to be WOTUS would decrease under the new rule. Upland ditches and ephemeral ditches would no longer fall under WOTUS. The number of wetlands considered WOTUS would also take a hit under the new rule.  Wetlands would either have to “abut” other WOTUS or “have a direct hydrological surface connection” to WOTUS in a “typical year” to fall under the new definition. Furthermore, wetlands would no longer be considered to be “adjacent,” and therefore connected to WOTUS, if they are “physically separated from jurisdictional waters by a berm, dike, or other barrier.” Finally, you guessed it— the number of lakes and ponds considered WOTUS would also be reduced, since they would no longer connect through “adjacent” wetlands.

What’s next?

It’s important to remember that this new WOTUS rule is not currently effective—they are just proposed rules, open to public comment.  In the meantime, due to litigation, what qualifies as WOTUS depends on which state you live in, as we discussed in Harvest posts here and here.  EPA has a map depicting which definition of WOTUS currently applies where—in some states, the 2015 rule applies, and in others the pre-2015 rule applies.  Obama’s 2015 rule applies in Ohio at this time.  If the proposed rule makes it through the rulemaking process and goes into effect, it will replace the 2015 and pre-2015 rules, and barring any other lawsuits, will apply nationwide.  The ultimate implementation of this rule is anything but certain; changes and challenges to the rule are likely to occur.  The Ag Law Blog will keep readers updated on all the WOTUS discussion yet to come.

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The Ag Law Harvest

Movement on Ohio “Watersheds in Distress” rules.  As we have reported on several times this summer, Governor John Kasich signed an executive order on July 11, 2018 directing ODA to “consider whether it is appropriate to seek the consent of the Ohio Soil and Water Commission (OSWC) to designate” certain watersheds “as watersheds in distress due to increased nutrient levels resulting from phosphorous attached to soil sediment.”  Since that time, ODA has submitted a proposed rule dealing with Watersheds in Distress.  Amendments were made to the proposed rule after evaluating the first set of public comments, and ODA is now resubmitting the rules package.  ODA reopened the proposed rule for public comments, but it closed the comment period on September 7, 2018.  Information about the proposed rules, as well as how and where to comment, can be found here (click on the “Stakeholder Review” tab and then the “Soil and Water Conservation – Watersheds in Distress OAC 901:13-1” drop down option).  A draft of the newly amended proposed rules is available here.

WOTUS woes continue.  The Obama administration’s hotly contested “Waters of the United States” Rule is back in the news, and this time, where it applies is dependent on where you live.  A background on the rule can be found in our previous blog post.  The rule basically expanded which bodies of water qualify as “waters of the United States,” which in turn protected more waters under the Clean Water Act.  The rule became effective in 2015.  Since that time, U.S. District Courts in North Dakota and Georgia have issued preliminary injunctions against Obama’s WOTUS Rule, which means it cannot be carried out in twenty-four states.  Additionally,  last summer, the EPA and Army Corps of Engineers, under the direction of President Trump, announced their plan to repeal Obama’s WOTUS Rule and replace it with the definition of WOTUS “that existed prior to 2015” until a new definition could be developed. Trump’s  rule was published on February 6, 2018, giving the administration until 2020 to come up with a new definition.   However, in a ruling on August 16, 2018, in a U.S. District Court in South Carolina, Judge David Norton determined that the Trump administration “failed to comply with” requirements of the Administrative Procedure Act when it enacted its rule.  This means that the Trump rule repealing and replacing the definition of WOTUS is invalidated.  As a result of Judge Norton’s decision, in the remaining twenty-six states without an injunction, the Obama administration’s version of the rule has been reinstated.  Ohio is one of the twenty-six states where the Obama rule currently applies.  Will the Trump administration and the EPA respond to Norton’s decision by announcing yet another new WOTUS rule?  Follow the Ag Law Blog for any updates.  In the meantime, the country remains nearly split in half by which version of the WOTUS rule is carried out.

Regulators, meet “meat.”  Under a new Missouri law, it is a criminal offense to misrepresent a product as “meat” if there is, in fact, no meat.  Missouri’s revision of its meat advertising laws took effect on August 28th, and has been dubbed by many as the first attempt by a state to regulate what qualifies as meat.  Defining meat as “any edible portion of livestock, poultry, or captive cervid carcass,” the law prohibits “misrepresenting a product as meat that is not derived from harvested production livestock or poultry.”  Violations are treated as a misdemeanor, with a fine up to $1,000 and possible jail time.  The Missouri Department of Agriculture has said that it intends to enforce the law, but that it plans to give affected companies until the start of next year to bring their labels into compliance.  Supporters of the law, like the Missouri Cattlemen’s Association, argue that it will provide consumers with accurate information about their food, and also protect meat producers from unfair labeling of plant-based or lab-grown meat alternatives.  Opponents have already filed a lawsuit to prevent enforcement, arguing that the law restricts free speech and improperly discriminates against out-of-state producers of meat alternatives.  The named plaintiff on the lawsuit is Turtle Island Foods, an Oregon company that does business under the names Tofurky and The Good Foods Institute.  The company makes plant-based food products, and is joined in its opposition by the American Civil Liberties Union of Missouri and the Animal Legal Defense Fund.  Beyond Missouri, the National Cattlemen’s Beef Association has listed the issue as a top policy priority for this year, and the U.S. Cattlemen’s Association has petitioned the USDA to adopt stricter labeling requirements.  As this issue develops, the Ag Law Blog will keep you updated.

USDA taps Commodity Credit Corporation to aid farmers.  Readers are no doubt aware of global trade disputes in which other countries have increased tariffs on American agricultural exports.  Given the extensive news coverage, the Harvest will not attempt to cover the dispute in depth; however, one point that has been less covered is the tool that the USDA has selected to provide relief to impacted farmers: the Commodity Credit Corporation.  What is it?  The Commodity Credit Corporation (CCC) is a federal government entity created during the Great Depression in 1933 to “stabilize, support, and protect farm income and prices.”  Since 1939, it has been under the control of the Secretary of Agriculture, although it is managed by a seven member Board of Directors.  CCC is technically authorized to borrow up to $30 billion from the U.S. Treasury at any one time, but due to trade agreements, that number is, in reality, much smaller.  This gives USDA access to billions of dollars in funding without having to go to Congress first.  The money can be used to provide loans or payments to agricultural producers, purchase agricultural products to sell or donate, develop domestic and foreign markets, promote conservation, and more.  CCC has no staff, but is instead administered through other USDA agencies, largely the Farm Service Agency and Agricultural Marketing Service.  On August 27th, Secretary of Agriculture Sonny Perdue announced that USDA plans to tap the Commodity Credit Corporation for up to $12 billion worth of aid to farmers affected by recent tariffs.  The Market Facilitation Program will provide direct payments to eligible corn, cotton, dairy, hog, sorghum, soybean, and wheat producers, and the Food Purchase and Distribution Program will purchase up to $1.2 billion in select commodities.  For more about the Commodity Credit Corporation, check out its website.

Bayer reports increasing number of lawsuits against newly acquired Monsanto.  Bayer, the German pharmaceutical and life sciences company that acquired Monsanto early this summer, has indicated that there are an increasing number of lawsuits in the United States alleging that its weed killers cause cancer.  According to the Wall Street Journal, there were roughly 8,700 plaintiffs seeking monetary damages from Bayer as of late August, a sharp increase from the 5,200 plaintiffs just months earlier.  Many of these lawsuits involve cancer patients who claim that Monsanto’s glyphosate-containing herbicides like Roundup caused their cancer.  As we reported in a previous edition of the Harvest, one person’s successful lawsuit against Monsanto resulted in a San Francisco jury award of $289.2 million for failing to warn consumers of the risks posed by its weed killers.  Monsanto is expected to file motions for a new trial and for the judge to set aside the verdict, and may ultimately appeal the decision.  These cancer-related claims come at a time when another Monsanto product, Dicamba, is causing great controversy.  Stay tuned to the Ag Law Blog as these lawsuits continue to develop.

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The Ag Law Harvest

Written by Ellen Essman, Sr. Research Associate

Here’s our gathering of recent agricultural law news you may want to know:

Kasich’s Executive Order delayed.  As we previously wrote about, Governor John Kasich signed an executive order earlier this month which directed ODA to “consider whether it is appropriate to seek the consent of the Ohio Soil and Water Commission (OSWC) to designate” certain watersheds “as watersheds in distress due to increased nutrient levels resulting from phosphorous attached to soil sediment.”  The OSWC voted on July 19 to delay Kasich’s executive order, which means that the eight watersheds will not be labeled “watersheds in distress” at this time.  Instead, a subcommittee of the OSWC is tasked with researching and determining if each of the watersheds should be listed as “watersheds in distress.”  More information on this delay is available in Ohio’s Country Journal.

ODA to submit “Watershed in Distress” rule package.  In more news regarding “watersheds in distress,” ODA is expected to propose a new rule package.  While rules concerning watersheds in distress already limit the land application of manure on farms, the new rules would also limit the application of “nutrients,” which are defined as “nitrogen, phosphorus, or a combination of both.”  Stay tuned to the Ag Law Blog for any updates on this rule package!

ODA upgrades website.  The Ohio Department of Agriculture updated its website last month.  The update includes a section with frequently asked questions and answers for each of the separate Divisions. For example, the questions frequently asked about food safety, making and selling food are available here.  Head to www.agri.ohio.gov to check it out the new ODA website.

Additional comments sought on WOTUS.  On July 12, 2018, the Army Corps of Engineers and the EPA published a supplemental notice of proposed rulemaking in the Federal Register.  The supplemental notice is meant to “clarify, supplement and seek additional comment on” last summer’s proposal to repeal the 2015 Waters of the United States (WOTUS) Rule.  As a reminder, the 2015 WOTUS rule expanded the meaning of “waters of the United States,” or those waters protected under the Clean Water Act, to include “tributaries to interstate waters, waters adjacent to interstate waters, waters adjacent to tributaries of interstate waters and other waters that have a significant nexus to interstate waters.” If the 2015 WOTUS rule is repealed, then the pre-2015 regulations defining WOTUS will be recodified.  The agencies are seeking additional comments on the proposed rulemaking through this supplemental notice.  The comment period is open through August 13, 2018.  Comments can be left here.

Ohio legislation on the move

  • Dogs on patios. B. 263, which we have been following, was sent to the Governor on 7/24/2018.  Kasich’s signature would mean that food establishments and food service operations could permit customers to bring a dog into an outdoor dining area if the dog is vaccinated.  Each establishment must adopt a policy requiring customers to control their dogs and to keep their dogs out of indoor areas.  See our previous coverage of this legislation here and here.

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Implications of the U.S. Supreme Court’s WOTUS ruling

The U.S. Supreme Court ruled earlier this week in National Association of Manufacturers v. Department of Defense that a federal district court is the proper forum for challenges to the substance of the “Waters of the United States” (WOTUS) rule.  The holding brings clarification for parties raising similar types of challenges under the federal Clean Water Act, who often filed cases in both the district and appellate courts due to confusion over which court has jurisdiction over the cases.  Litigants can now be sure that the case should originate with the federal district court, which provides greater access for similar challenges but could create more inconsistent rulings around the country.  The court’s decision arrives at an odd time, with the evolving WOTUS landscape now focused on formulation of a new WOTUS rule to replace the rule that is under fire.

The court’s reasoning

The Supreme Court’s decision in this case is not surprising, a result of attention to the express language of the Clean Water Act rather than to several interpretations advanced by the government.  The Clean Water Act places authority over Clean Water Act challenges in the federal district courts, with seven exceptions that are to be heard by the appellate courts.   The federal government argued that two of those exceptions applied to its drafting of the WOTUS rule.  The court disagreed, concluding that WOTUS does not establish an “effluent limitation” nor does it result in the issuance or denial of a permit as argued by the government.   The court recognized that it would likely be more efficient and uniform for such challenges to be heard by an appellate court, but that would require a rewriting of the statute.

WOTUS uncertainty remains

The Supreme Court sent the case back to the Sixth Circuit Court of Appeals with an order to dismiss the WOTUS petitions before that court, which consisted of all appellate cases challenging the rule that were previously transferred to the Sixth Circuit by the Judicial Panel on Multidistrict Litigation.  Note that the Sixth Circuit had issued a nationwide stay of the WOTUS rule in 2015 pending determination of whether the rule was a valid exercise of agency authority.  That stay will presumably disappear with the Sixth Circuit’s dismissal of the case, but some claim that the Sixth Circuit could seek to continue to enforce the nationwide stay.  A federal district court in North Dakota had previously issued an injunction against the WOTUS rule in North Dakota and a dozen other states, so that injunction would continue to prevent implementation of the rule in those states if the Sixth Circuit removes its stay.

Further complicating the status of the WOTUS rule are the actions taken by the Trump administration, which issued a proposed rule last November to delay the rule’s effective date to 2020 and a second proposal last February to replace WOTUS with the rule that was in place previously while the EPA develops a new definition of WOTUS.  The EPA has not finalized either of those rules.  The federal district courts with WOTUS cases currently before them could choose to stay their cases pending the current administration’s rulemaking process.   Alternatively, one of the federal district courts could issue a nationwide injunction against the rule.

Consistent with its history, WOTUS remains unclear.  Agricultural interests will have to wait and see what happens next.

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EPA Announces Plan to Repeal WOTUS Rule

Written by Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program

On June 27, 2017, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) announced their plan to repeal the Obama Administration’s Waters of the United States (WOTUS) Rule.  The EPA and the Corps’ proposal involves two steps.  First, the agencies propose to “rescind” Obama’s WOTUS rule and “re-codify,” or re-enter, the definition of WOTUS “that existed prior to 2015” into the federal regulations.   The pre-2015 rule would serve as a placeholder until the agencies are able to carry out the second part of their plan.  The second part of the plan involves developing and proposing a new definition of WOTUS.  This announcement comes several months after President Trump called for either a repeal or revision of the WOTUS Rule in his February 28, 2017 Executive Order (EO).  The EO was quickly followed by the EPA and other agencies filing a Notice of Intention to Review and Rescind or Revise the Clean Water Rule (Notice).  The EO can be found here, and the Notice here.

What was the Obama Administration’s WOTUS Rule?

The WOTUS Rule went into effect on August 28, 2015.  The Rule expanded the meaning of “waters of the United States,” or those waters protected under the Clean Water Act (CWA), to include “tributaries to interstate waters, waters adjacent to interstate waters, waters adjacent to tributaries of interstate waters, and other waters that have a significant nexus to interstate waters.”  Furthermore, the Rule stated that tributaries are WOTUS when they flow into navigable waters, even if their flow was not constant.  The rule also elaborated on the meaning of “adjacent waters.”  For more information about the WOTUS Rule, see our blog post from earlier this year.  The Rule as it was released in the summer of 2015 can be found here.

How will “Waters of the United States” be defined?

  In the short term

Step one of the EPA and the Corps’ plan calls for a repeal of the Obama Administration’s definition of WOTUS, and a reimplementation of the WOTUS rule that existed prior to 2015.  In order to do this, the agencies are proposing a rule.  The proposed rule calls for the Code of Federal Regulations—in particular, 33 C.F.R. §328.3, to be amended to reflect the previous definition of WOTUS.  Notably, this definition does not include the Obama Administration’s expanded descriptions of “tributaries” or “adjacent waters.”  Furthermore, there is no mention of “significant nexus.”  This interim definition of WOTUS proposed by the EPA and the Corps can be found in the proposed rule, here.

            In the long term

The second step of the EPA and the Corps’ plan calls for the agencies to perform a “substantive re-evaluation” of the definition of WOTUS.  Any re-evaluation of the definition will likely take Trump’s EO into account, which called for the EPA and other agencies to, in any “[f]uture [r]ulemaking,” “consider interpreting the term ‘navigable waters’” as Justice Scalia did in Rapanos v. U.S.   The CWA defines “navigable waters” as “waters of the United States, including territorial seas.”  Thus, “navigable waters” and “WOTUS” are one in the same.  Scalia’s interpretation rejected the idea that navigable waters and WOTUS could come from channels where water flow was only occasional.   Justice Scalia asserted that navigable waters/WOTUS must be, for the most part, permanent bodies of water.  Given the language in Trump’s EO, it is likely that the second step of the plan will involve a proposed rule that includes a definition of WOTUS that closely resembles Scalia’s interpretation.  More information on Scalia’s interpretation can be found in our earlier blog post.

It is important to keep in mind that even if the EPA and the Corps successfully repeal and replace the previous administration’s definition of WOTUS, it is still very likely that opponents will challenge any new definition.  Furthermore, both the short term and long term parts of the plan have to go through the rulemaking process, including a comment and review period, before they can become effective. As a result, the debate over the meaning of WOTUS is likely far from finished.

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A Worrisome Week for WOTUS

Written by: Ellen Essman, Law Fellow, and Peggy Hall, Asst. Professor, OSU Agricultural & Resource Law Program

 The controversial “Waters of the United States” (WOTUS) Rule suffered two governmental assaults this week.   We reported earlier this year about litigation over the Rule and a Senate Resolution urging withdrawal of the Rule.   Actions this week in the House of Representatives, the White House and the EPA echo the Senate’s sentiments and push the Rule further towards its demise.

The House Resolution

In the U.S. House of Representatives, Ohio’s Representative Bob Gibbs introduced a resolution on February 27, 2017 stating that the Rule should be vacated.  House Resolution 152 declares that the Clean Water Act (from which the Rule derives) is one of the nation’s most important laws whose success requires cooperative federalism, under which federal, state and local governments have a role in protecting water resources.   Based upon the foundation of cooperative federalism, “Congress left to the States their traditional authority over land and water, including farmers’ field, non-navigable, wholly intrastate water (including puddles and ponds), and the allocation of water supplies.”  The Resolution asserts that the latest revision to the Rule, however, claimed broad federal jurisdiction over water that encroaches upon the authority of the States and undermines the Clean Water Act’s historical exemptions from federal regulation.  The Resolution also claims that the EPA failed to follow proper processes when issuing the Rule.

 The Executive Order

 President Trump’s executive order  (EO) issued on February 28, 2017 calls for the EPA and the Army for Civil Works (“Civil Works”, a part of the Army Corps of Engineers) to “rescind or revise” the WOTUS Rule.  It is important to note, however, that the EO does not abolish the Rule; it simply orders the two agencies to review the Rule and try to adapt it to the Trump administration’s policies.   The EO includes a policy statement explaining that it is in the best interest of the United States to keep “navigable waters… free from pollution,” but there is also a strong interest in promoting economic growth, so any changes to the Rule must balance both of those interests.  The EO also gives the Attorney General the discretion to communicate any potential changes to the WOTUS Rule to federal courts with pending WOTUS litigation.

The EO further directs the EPA and Civil Works, when revising or rescinding the WOTUS Rule, to construe “navigable waters” as Justice Scalia did in the Supreme Court case Rapanos v. U.S.   Under the Clean Water Act, “navigable waters” are defined as “waters of the United States, including territorial seas.”  This means that the terms “navigable waters” and “waters of the United States” are interchangeable.   In Rapanos, Justice Scalia, who wrote the decision for a plurality of the Court, asserted that navigable waters/WOTUS cannot be “ordinarily dry channels through which water occasionally or intermittently flows.”  Instead, they must be “relatively permanent, standing or flowing bodies of water,” or wetlands with a “continuous surface connection” to permanent water bodies.   Scalia’s interpretation is at odds with the interpretation contained in the Obama administration’s WOTUS Rule.

Agency Response to the Executive Order

EPA Administrator Scott Pruitt and Civil Works acting Secretary Douglas Lamont didn’t waste any time responding to Trump’s EO.  On the same day Trump signed the Order, the agencies filed a Notice of Intention to Review and Rescind or Revise the Clean Water Rule.  In the notice, the agencies explain their intentions to follow the EO, review the Rule and consider adopting Justice Scalia’s interpretation of navigable waters.   The agencies state that they will utilize new rulemaking to “provide greater clarity and regulatory certainty concerning the definition of ‘waters of the United States.’”

 Refresher:  What’s in the WOTUS Rule?

The Obama Administration’s WOTUS Rule was released in the Federal Register on June 29th, 2015, and went into effect on August 28th, 2015.  According to the EPA and the Army Corps of Engineers at the time, the rule was meant to “clarify the scope of ‘waters of the United States’…protected under the Clean Water Act.”  In particular, the Rule states that a number of bodies of water qualify as WOTUS, such as: “tributaries to interstate waters, waters adjacent to interstate waters, waters adjacent to tributaries of interstate waters, and other waters that have a significant nexus to interstate waters.”  The Rule elaborates on the definition of “tributaries,” which are WOTUS if they flow “to a traditional navigable water, an interstate water, or the territorial seas,” regardless of whether the flow is year-round, seasonal, or due to precipitation.  Tributaries flowing into navigable and interstate waters that have “a bed and banks,” as well as “an indicator of ordinary high water mark” qualify as WOTUS under the Rule.  “Adjacent waters” means “all waters located in whole or in part within 100 feet of the ordinary high water mark” of WOTUS, as well as “all waters within the 100-year floodplain” of WOTUS.   Numerous different kinds of water can be “adjacent,” such as “wetlands, ponds, lakes, oxbows,” and “impoundments.”   More information about the WOTUS Rule is available here.

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