It’s difficult to track a legislative decree ebbed by executive tides streaming through judicial turbulence. Where’s the land? Where are we headed?
The Waters of the United States, efficiently called WOTUS, would determine what wetlands, streams, branches or creeks (or ditches?) fall under the regulator power of the Clean Water Act.
In February, the Southern Environmental Law Center, on behalf of some environmental groups, challenged the Trump administration’s efforts at the time to drop anchor on the Obama-era WOTUS rule opposed by groups, including the wide-ranging, dogged U.S. agriculture industry. Critics say the vague rule could lead to over-reaching, burdensome regulatory powers on private landowners. The law center argued Trump’s newly led EPA didn’t properly pilot the bureaucratic course when it changed administrative direction and suspended the WOTUS rule.
The U.S. District Court in South Carolina, which handled the SELC case agreed and on Aug. 17 said the administration’s efforts to suspend the rule failed to navigate the Administrative Procedure Act, or APA, which governs the process by which federal agencies develop and issue regulations. The judge said the deferral of the WOTUS rule, well, didn’t hold legal water.
Because of the court’s ruling, the WOTUS rule tentatively is now officially law in the 26 states that couldn’t shelter under the umbrella of previous court injunctions. According to information from an Aug. 17 National Cotton Council newsletter, the Southeast states exposed to the rule include Florida, Tennessee and Virginia, but, ironically, not South Carolina.
The story isn’t over. The district court ruling in South Carolina will be appealed. Soon after the August rendering, U.S. agriculture, most notably the American Farm Bureau Federation, urged the Trump administration to take court action to limit the scope of the South Carolina court decision and push to over-rule the WOTUS rule.
When the three branches of government converge in the main channel, you grab all the oars and put extra hands on the rudder and dam the flow as best you can. Landfall will eventually happen someplace at some time.
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