Court ruling revives WOTUS in California


Issue Date: August 22, 2018
By Dave Kranz

The already-tangled history of a federal "waters of the United States" rule has become yet more so, after a federal court ruling in South Carolina. But observers say one thing is clear: The controversial 2015 WOTUS rule has come back to life in California and 25 other states.

"We are back to where the 2015 rule is effective in California, which means trying to determine what waters are waters of the United States," said California Farm Bureau Federation Senior Counsel Kari Fisher, who has been monitoring a number of legal and administrative challenges to the rule.

Controversial from the start, the WOTUS rule expands the jurisdiction of the U.S. Environmental Protection Agency and Army Corps of Engineers over both water and land. Farmers and agricultural organizations in particular raised concerns about their ability to conduct routine farming activities without applying for a permit from a federal agency.

Responding to the criticism, the Trump administration acted to rescind and replace the 2015 rule—but the steps the administration took to do so ran afoul of a legal challenge brought by environmental groups.

Specifically, the groups challenged what was known as the "applicability date rule" or the "suspension rule," under which the administration extended the effective date of the 2015 WOTUS rule while it worked to rescind and replace it. The groups accused the administration of short-circuiting requirements of the Administrative Procedures Act, which outlines public notice and comment periods the government must follow in issuing rules.

U.S. District Court Judge David C. Norton of South Carolina agreed.

"As administrations change, so do regulatory priorities," Norton wrote. "But the requirements of the APA remain the same. The court finds that the government failed to comply with these requirements in implementing the Suspension Rule."

Because Norton overturned the suspension rule nationwide, Fisher said, that means the 2015 WOTUS rule returns in all states except 24 where it had previously been blocked by separate federal court cases in North Dakota and Georgia. California is among the 26 states where the 2015 rule returned.

American Farm Bureau Federation President Zippy Duvall criticized the South Carolina ruling, saying it "creates enormous regulatory uncertainty and risk" for farmers, ranchers and others in the 26 states now covered again by the 2015 rule.

AFBF and a coalition of business organizations notified the South Carolina court that they would appeal its ruling. Separately, the coalition asked a court in Texas to issue a nationwide injunction against the 2015 WOTUS rule.

Duvall also urged the administration "to move as quickly as possible to a final decision to repeal the 2015 rule."

In June, the EPA and Corps issued an updated proposal to rescind the 2015 rule. Fisher said a comment period on the updated proposal closed last week.

"Step 1 is to officially repeal the 2015 rule," she said, "and then step 2 would be an actual replacement of the WOTUS definition."

But that process could take months, Fisher said.

"There has been a lot of litigation from all sides every step of the way," she said. "Even though the administration has made it known they want to repeal and replace WOTUS, it's not an easy process."

The revival of WOTUS regulation means farmers and ranchers could face additional federal regulation and permit requirements to undertake certain activities, Fisher said, especially involving conversion of land from one crop or use to another.

She noted that CFBF has created an online tool to help landowners learn about the potential layers of regulation on a particular parcel of land. Users of the site at wotus.cfbf.com can enter a parcel address on an interactive map, to help determine whether the 2015 WOTUS rule might apply to that piece of land.

The WOTUS rule website is available only to Farm Bureau members in California, who will need to enter a member identification number and password. Fisher said the password is available from county Farm Bureau offices or by contacting her at kfisher@cfbf.com.

(Dave Kranz is editor of Ag Alert. He may be contacted at dkranz@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.