By Jessica Domel
Multimedia Editor
The nation is one step closer to being free of the controversial Waters of the U.S. (WOTUS) rule. The Environmental Protection Agency (EPA) recently submitted a proposal to the Office of Management and Budget (OMB) for interagency review that would presumably remove the rule from the Clean Water Act.
Over the next few weeks, the OMB will review the proposal. It will then be published in the Federal Register, inviting the public to comment.
The WOTUS rule was finalized on Aug. 28, 2015. A U.S. District Judge, however, granted a temporary injunction essentially blocking the rule’s implementation. Many entities, including American Farm Bureau Federation (AFBF) and Texas Farm Bureau (TFB), have challenged the legitimacy of the rule and the expansive interpretation of federal authority.
The rule greatly expands EPA’s regulatory authority by defining areas that only sometimes hold water, like ditches and low-lying areas, as a “water of the U.S.” EPA could then use their authority under the Clean Water Act to require permits or further dictate what is done on the land by issuing citations against landowners or renters for working in those areas.
When President Donald Trump took office, he formally asked the EPA and the Army Corps of Engineers to review and repeal, the “horrible, horrible rule.”
The Presidential Executive Order (EO) says it is in the national interest that navigable waters are kept free from pollution while at the same time promoting economic growth, minimizing regulatory uncertainty and showing due regard for the roles of Congress and the states under the Constitution.
The EO also ordered a review of EPA’s use of “navigable waters” in future rulemaking. He asks the term to be defined in accordance with late Justice Antonin Scalia’s decision in Rapanos v. United States, which does not give EPA broad authority over waters.
Meanwhile, court cases against WOTUS continue. The Supreme Court of the United States announced in mid-April they will not put legal challenges to WOTUS on hold.
At least 25 states, including Texas, and other entities, including Texas Farm Bureau and Matagorda County Farm Bureau, have filed suit against the WOTUS rule in courts across the nation.
Although SCOTUS has not formally taken up the cases, it is considering whether the Sixth Circuit Court of Appeals is the correct jurisdiction for the challenges.
AFBF and TFB support withdrawal of the rule.