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EPA, Army put brakes on WOTUS

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Agricultural groups see the agencies’ action as a death knell on the controversial rule they contend greatly and unlawfully expanded federal authority under the Clean Water Act.

The rule, which sought to clarify the definition of “waters of the United States” regulated under the Clean Water Act, was strongly opposed by agriculture, states and businesses — which contend it greatly expands federal regulatory authority in violation of congressional intent.

The agencies’ action comes on the heels of a U.S. Supreme Court ruling that lifts a stay on implementation of the WOTUS rule. That court determined that the U.S. Sixth Circuit Court of Appeals does not have original jurisdiction in the lawsuits challenging the rule and therefore lacks authority to issue a stay on implementation.

The agencies issued a press release on Wednesday saying the Supreme Court’s action could result in confusion as to which definition of WOTUS applies nationwide.

“Given uncertainty about litigation in multiple district courts over the 2015 Rule, this action provides much needed certainty and clarity to the regulated community during the ongoing regulatory process,” they stated.

In June, the agencies proposed a rule to rescind the 2015 Clean Water Rule and are currently reviewing public comment on that proposal. They are also reviewing input from state, local, and tribal governments and other stakeholders to develop a rule that would revise the definition of WOTUS.

The American Farm Bureau Federation, National Cattlemen’s Beef Association and Western Growers promptly issued statements applauding the agencies’ action.

The 2015 rule was hopelessly vague, expansively defining waters of the U.S., said Zippy Duvall, AFBF president.

“That rule would have put a stranglehold on ordinary farming and ranching by treating dry ditches, swales and low spots on farm fields just like flowing waters. Without today’s action, countless farmers and ranchers, as well as other landowners and businesses, would risk lawsuits and huge penalties for activities as common and harmless as plowing a field,” he said.

Delaying the rule is part of a measured process to provide regulatory certainty to farmers and ranchers while the agencies continue the important work of withdrawing and rewriting the unlawful rule, he said.

Scott Yager, NCBA’s chief environmental counsel, said the agencies’ two-year delay on implementation ensures the 2015 WOTUS rule never comes back.

“We thank Administrator Pruitt and his team for this prompt action, which protects agricultural producers across the country, and we look forward to the next steps — repeal and replace,” he said.

Dennis Nuxoll, Western Growers vice president of federal government affairs, said America’s food producers are the nation’s first and finest stewards of the land and its resources.

“Yet, the Obama-era clean water rule overextended the reach of the Clean Water Act, jeopardizing the livelihood of family farmers across the country,” he said.

“We applaud EPA and the Army Corps for hitting the pause button while we search for added clarity and certainty for America’s farmers,” he said.

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