TheFirstFurrow

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.

KEY POINTS

  • 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 30, 2017 It’s Time for Regulatory Reform

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. Wrapping up this week: regulatory reform.

All Americans have an interest in a regulatory process that is transparent and fact-based, respects the will of Congress, and observes the separation of powers in the Constitution. Federal regulations have a direct impact on farmers and, over the years, the breadth and extent of that regulatory landscape have increased. Farm Bureau has taken a stand against regulatory overreach and is working to reform the federal regulatory process and preserve farmers’ and ranchers’ land-use and water rights.

Regulatory Overload

Today, farmers and ranchers are faced with a flurry of requirements through the Clean Water Act, the Endangered Species Act, the Federal Insecticide, Fungicide and Rodenticide Act, the Food Safety Modernization Act, immigration and labor regulations, and interpretation of the Federal Land Policy and Management Act—to name just a few.

Often, these requirements are the result of federal regulations; sometimes they emanate from court decisions. But no matter how they are established, the result often can be controversial. Stakeholders disagree on the language in the rule, and affected parties disagree on the science, the data or the models underpinning one or the other.

Farm Bureau strongly believes that all Americans, including farmers and ranchers, need a regulatory system that is fair, transparent, adheres to the will of Congress, takes economic impacts into account and respects our freedoms.

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, April 6, 2016 Life after Scalia: Finding Boundaries and Balance in Environmental Regulations

Last week, the Supreme Court of the United States heard oral arguments in US Army Corps of Engineers v. Hawkes Co., Inc. The case is significant for a number of reasons: it could have major implications on how landowners are allowed to use their property; it could strike a blow to regulatory overreach by government bureaucrats; and it could provide insight into how the Court will view environmental regulation in future cases.