Federal Court Holds Enforcement of WOTUS Rule

On Oct. 6, the Sixth Circuit Court of Appeals stayed the waters of the U.S. (WOTUS) rule issued by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers that became effective on August 28. The court vote of 2-1 suspended the effectiveness of the rule nationwide.

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Although the new rule was aimed narrowing the scope of WOTUS to address several court decisions, some land features previously considered not subject to Clean Water Act now will fall within the definitions of the new rule.

Since the rule became effective on Aug. 28, 18 states – including Georgia – have filed lawsuits asking the federal court to strike down the rule. Two of the three appeals court judges agreed that the opponents of the WOTUS are likely to win their challenge and questioned whether the public comment process was followed when adopting distance requirements.

“We are pleased the court took the prudent step of staying the rule while it sorts through the legal issues. The finding of the court that the petitioners have a strong likelihood of success on the procedural and substantive issues in the case is encouraging, but it will take time for the Court to consider these issues individually,” said Dave Tenny, CEO of the National Alliance of Forest Owners. “Postponing implementation of the rule pending a determination of its legality makes good sense. In the meantime, we continue to encourage Congress to enact legislation that will enable all parties to take a fresh look at this issue outside of the courtroom.”

The next step in the case will be a decision by the Sixth Circuit as to whether or not that court has jurisdiction to review the validity of the rule.

Last month, Senators Isakson and Perdue, along with 45 Senate co-sponsors, introduced a joint resolution to overturn the rule. Senators Isakson and Perdue also co-sponsored the Federal Water Quality Protection Act, which would direct the EPA to develop a different rule and consult with states, local governments, and small businesses. This legislation would also prevent federal agencies from using the “Waters of the United States” rule to control land.

“Halting this regulation until legal issues are addressed makes sense and is a good step, but we must continue our work to overturn it for good. Senator Perdue and I co-sponsored a resolution in September to overturn this regulation that is harmful to not only landowners, but to our entire agriculture industry in Georgia,” said Senator Isakson. “This regulation – one of many overreaches by this administration – would allow federal bureaucrats to assert control over thousands of streams, creeks, wetlands, ponds and ditches throughout the country.”

To learn more and to stay on top of the progress of the WOTUS rule, visit GFA’s Federal Issues and Action Items page regularly. Click here to learn more →

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