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Issue Background

Waters of the United States Regulation

A limit to federal jurisdiction is essential to maintaining the appropriate federal-state balance, which is the hallmark of the Clean Water Act.

Overview

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.

  • The WOTUS final rule usurps and ignores state and local efforts to protect these waters. It will have major implications for all Clean Water Act programs. The final rule will be difficult to implement and causes more harm and confusion rather than clarifying.
  • Farmers and ranchers could be prohibited from grazing cattle near a pond, or required to obtain a permit for common, everyday activities like pasture management.

Administrative Action

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.

Judicial Action

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.

Additional Resources

Beltway Beef Podcast: NCBA Environmental Counsel Scott Yager Discusses WOTUS Litigation On Steps of the U.S. Supreme Court Immediately After Hearing

Video: EPA Administrator Scott Pruitt Urges Ranchers to File WOTUS Comments

Official Comments: Read the full, official comments that NCBA and the Public Lands Council submitted to EPA on Sept. 26, 2017.