A limit to federal jurisdiction is essential to maintaining the appropriate federal-state balance, which is the hallmark of the Clean Water Act.
The EPA published its final Clean Water Rule on June 29, 2015. This followed the Supreme Court’s Rapanos decision, which encouraged the EPA to clarify vague language in the Clean Water Act. The Clean Water Rule (WOTUS) is broad and overreaching, bringing unintended water bodies into federal regulatory jurisdiction
The 2015 WOTUS Rule represents a significant expansion of federal jurisdiction beyond current practices and the limitations affirmed by the Supreme Court.
On February 28, 2017, President Trump signed an Executive Order to withdraw the 2015 WOTUS rule. The EPA has initiated a notice-and-comment rulemaking to repeal the 2015 rule; the comment period ended on September 27th.
When EPA successfully completes a full withdrawal of the current rule, they are still required by the Supreme Court to establish a rule to clarify the Clean Water Act’s ambiguous “waters of the United States” language. NCBA’s cooperation with EPA during the future redrafting and comment phase is vital to ensure that a new rule brings clarity to “Waters of the United States” without placing an undue burden on farmers and ranchers.
The 2015 WOTUS rule presents a number of legal challenges, and the Supreme Court has indicated their interest in its future. When the rule was finalized in 2015, the Supreme Court approved a stay on its implementation, until lawsuits concerning its legality are complete.
Additionally, on October 11, 2017, the Supreme Courts heard oral arguments related to the 2015 rule, in order to determine if the case should start at the District or Circuit court level. While this procedural question does not have a direct impact on the final outcome, it is a necessary step in the judicial process.