Wednesday, January 24, 2018 The Newest Chapter in the Ongoing Saga of the 2015 WOTUS Rule

It’s no secret that farmers nationwide oppose the Obama Administration’s 2015 Waters of the U.S. (WOTUS) Rule. As we’ve written here before, the 2015 Rule would significantly expand the area where the federal government has the authority to regulate water. Why? Because under the 2015 Rule many tracts of land would become newly regulated “waters,” even land that is only wet for a couple of hours after it rains.

If implemented, farmers would have to apply for costly federal government permits to engage in even the most basic farming practices on these lands. And there is no guarantee that those permits would be approved. Accordingly, numerous federal lawsuits were filed in 2015, including one brought by American Farm Bureau, in the hopes of stopping the WOTUS Rule.

On Monday, the Supreme Court of the U.S. (SCOTUS) once again waded into the WOTUS Rule waters, issuing an opinion in one of those lawsuits, National Association of Manufacturers v. Department of Defense (NAM). The Court’s decision wasn’t a blockbuster (or a page turner, for that matter). It merely stated that opponents of the Rule had to file their legal challenges in the federal district courts, not the federal appellate courts. That’s the result the opponents of the Rule were hoping for. So, let’s call it a narrow win for farmers and other landowners.

But, ironically, the Court’s decision may be a double-edged sword. To explain why, we’ve got to look back at those 2015 lawsuits we mentioned above.

Remember that, until Monday, opponents of the WOTUS Rule weren’t exactly sure where to file their lawsuits. Should they file in federal district court or federal appellate court? To hedge their bets, multiple lawsuits were filed in both courts. Of the cases filed in federal district court, most were dismissed by federal trial judges who said they didn’t have authority to hear the challenges because the cases should have been—wait for it—filed in the federal appellate courts! But a district court judge in North Dakota said otherwise and blocked the 2015 Rule from taking effect. However, that ruling only applied to 13 states: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming. Therefore, North Carolina farmers were not protected by the judge’s order.


  • SCOTUS ruled legal challenges to the WOTUS Rule must be filed in federal district courts, not federal appellate courts—a narrow win for NC farmers.
  • But the ruling currently blocking the WOTUS Rule from taking effect nationwide was issued by a federal appellate court.
  • Since SCOTUS just ruled that appellate courts don’t have jurisdiction to hear legal challenges to the WOTUS Rule, the nationwide stay issued by the appellate court will go away soon.
  • The Trump Administration is attempting to delay, rescind and replace the WOTUS Rule.
  • Congress could also pass legislation to help the Administration block the Rule.
  • But these efforts are almost certain to be challenged in court.
  • There’s a risk the WOTUS Rule may be in effect in NC sometime in late February or March 2018.

Meanwhile, the cases filed in the federal appellate courts were consolidated in the Sixth Circuit, U.S. Court of Appeals. The Sixth Circuit ultimately blocked the Rule from taking effect while it wrestled with the procedural question that SCOTUS answered earlier in the week. Unlike the North Dakota decision, the Sixth Circuit’s order took effect nationwide and it has been in effect since October 2015. As a result, North Carolina farmers haven’t had to comply with the 2015 Rule.

But the nationwide order blocking implementation of the 2015 Rule will go away soon. That’s because, at the end of its Monday opinion, SCOTUS sent the NAM case back to Sixth Circuit, directing it to dismiss the all of the cases challenging the rule. If the Sixth Circuit doesn’t have the power to hear those cases, it can’t continue to block the WOTUS Rule. The process of sending NAM back to the Sixth Circuit will take a little over thirty days. So sometime in late February the national stay that has protected North Carolina farmers from the 2015 Rule will evaporate.

Wednesday, August 23, 2017 It’s Time to Ditch the Rule

With Congress back in their districts for August Recess, we thought it’d be a good time to talk about some federal issues that are a high priority for Farm Bureau. This week: WOTUS.

So what is WOTUS? Back in 2015 the Environmental Protection Agency (EPA) and US Army Corps of Engineers (Corps) adopted a rule defining the scope of “waters of the US” (WOTUS) protected under the Clean Water Act (CWA). That rule, the WOTUS rule, expands federal authority beyond the limits approved by Congress and affirmed by the U.S. Supreme Court.

But you may be thinking, ‘didn’t courts strike down the WOTUS rule?’ Yes and no. The rule has never been implemented because it was stayed in both federal district court and a federal court of appeals. But those court orders are only temporary. And while the EPA’s current plan is to eliminate the 2015 rule and work on crafting a better WOTUS definition, environmental activists desperately want to preserve the 2015 land grab.

The impact of the 2015 rule on farmers will be enormous. That’s because the rule effectively eliminates any constraints the term “navigable” previously imposed on the Corps’ and EPA’s CWA jurisdiction, and the list of waters deemed “non-navigable” is exceptionally narrow—providing that few, if any waters, would fall outside federal control. This kind of shift in policy means that EPA and the Corps can regulate any or all waters found within a state, no matter how small or seemingly unconnected to a federal interest.

Wednesday, May 31, 2017 Elk in NC: The Good, The Bad, and The Solution

By North Carolina Farm Bureau President Larry Wooten

The old saying goes that ‘Good fences make good neighbors.’ There is plenty of truth to that, and as one of the largest land-owning groups in the state, farmers understand this maxim better than most.

This bit of wisdom is at the heart, both literally and figuratively, of a dispute that has been bubbling over in western North Carolina communities for several years now, and is beginning to come to a head. It centers on the reintroduction and management of elk on federal land in the Appalachian Mountains.

Wednesday, May 10, 2017 From Dust Came Soil Conservation

Written by Michelle Lovejoy, Executive Director of the North Carolina Foundation for Soil and Water Conservation

“I saw drought devastation in nine states. I talked with families who had lost their wheat crop, lost their corn crop, lost their livestock, lost the water in their well, lost their garden and come through to the end of the summer without one dollar of cash resources, facing a winter without feed or food — facing a planting season without seed to put in the ground.” – President Franklin Delano Roosevelt

In this quote, FDR is describing his 1936 trip to the Dust Bowl: a 150,000-square-mile area, including the Oklahoma and Texas panhandles and bordering sections of Kansas, Colorado, and New Mexico that was struck by what some scientists believe to be the most severe drought in 300 years. The massive problem started when the drought killed crops that kept the soil in place. Then intense winds raised gigantic dust clouds that would completely cover homes, suffocate livestock and caused pneumonia in many children. It was so strong and unyielding that it even blew dust all the way to Washington, D.C.

But how does North Carolina tie into the Dust Bowl?

North Carolina (Wadesboro) is home to the Father of Soil Conservation, Dr. Hugh Hammond Bennett. After accepting a job with the USDA Bureau of Soils in 1903, Bennett went on to spend the next three decades studying soils across the US and abroad, and he became convinced that soil erosion was “the biggest problem confronting the farmers of the Nation over a tremendous part of its agricultural lands.” Soil conservation became his life’s work.

Dr. Bennett was a smart man and a great communicator. He knew that he needed to drive the point home to Congress so they would understand soil erosion as the “National Menace”. The story goes that in 1935, he started tracking a large dust storm traveling from Oklahoma to Washington, D.C. He began his plea to Congress and had a runner staged to bring updates of the storm’s movement. At the pivotal point, he stepped down from the podium and threw open the window. As the soil flew in he said, “Gentlemen, that is Oklahoma,” – and with that, the Soil Conservation Act was passed.

Why did he recommend soil and water conservation districts?

Wednesday, June 22, 2016 Communication is Key

Being a successful farmer in the 21st century means more than owning a tractor and a few acres. It means having the ability to adapt to constantly changing situations and environments, staying up-to-date on cutting-edge technologies, and knowing how to effectively communicate with employees, the public, government officials, salesmen, scientists, and lawyers, just to name a few. What’s sometimes overlooked when we talk about all of the important things farmers do is the simple but essential act of farmer-to-farmer communication. It’s National Pollinator Week, so today we’ll take a closer look at one way in which farmers are working together using a new voluntary communication tool called DriftWatch that is gaining momentum across the US.

Wednesday, May 4, 2016 Five Things to Know about North Carolina Forestry

Nearly everyone who has traveled a North Carolina highway has been behind a log truck or seen trees being cut down. Maybe this drums up thoughts of a forest industry working to provide everyday items like paper towels and toilet paper, toothpaste, paints, furniture or 2x4s for your next home improvement project. On the other hand, maybe it brings to mind questions about how many trees are being cut down and how this affects the environment. Since yesterday was “Forestry Day in the Legislature”, we’ll take a look at five things that everyone should know about North Carolina’s forestry sector and hopefully debunk a few misconceptions along the way.