Supreme Court rules on WOTUS case

AFBF agrees with decision that federal district court, not courts of appeals, should review 2015 rule.

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Long term, American Farm Bureau Federation General Counsel Ellen Steen said the Supreme Court’s ruling brings greater clarity to the WOTUS issue, but it also creates confusion in the short term. (Illinois Farm Bureau file photo)

By Deana Stroisch

The U.S. Supreme Court ruled Monday that federal district courts – not courts of appeals – have jurisdiction to review the 2015 “waters of the U.S.” rule.

American Farm Bureau Federation’s general counsel agreed with the court’s decision, but noted it also creates “uncertainty and confusion.”

“This Supreme Court decision brings greater clarity to an important issue that has bogged down the litigation over this and other Clean Water Act regulations for years,” said Ellen Steen, AFBF’s general counsel. “That is a positive result, but it also creates uncertainty and confusion in the short term, because the Sixth Circuit must soon lift its nationwide stay of the 2015 rule.”

To prevent the old rule from going into effect before a new one is in place, the Environmental Protection Agency (EPA) and the Army Corps of Engineers in November proposed amending the applicability date of the 2015 rule by two years. That proposal, supported by Farm Bureau, hasn’t been finalized.

“AFBF is considering its options to avoid application of the 2015 rule while EPA moves forward with an appropriate long-term solution that provides clear rules and clean water without requiring a federal permit to plow a field,” Steen said.

The rule, developed by EPA and the Corps under President Barack Obama’s administration, went into effect in August 2015. It was quickly challenged by various trade associations, states and environmental groups. A North Dakota judge granted a temporary injunction in 13 states, not including Illinois. In a separate matter, 18 states challenged the validity of the final rule. Their cases were consolidated and transferred to the Sixth Circuit Court of Appeals, which ordered a nationwide stay.

The Supreme Court opinion, written by Justice Sonia Sotomayor, orders the Sixth Circuit Court of Appeals to dismiss petitions for review for lack of jurisdiction. That likely won’t happen until after Feb. 26.

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