Court Offers Ranchers Some Relief With WoTUS Ruling On Oct. 9, the United States Court of Appeals for the Sixth Circuit issued a ruling staying implementation of the Environmental Protection Agency (EPA) and Army Corps of Engineers' (Corps) Waters of the United States (WOTUS) Rule nationwide. The Court issued the stay while it tackles the issue of whether or not it is the proper court to rule on a group of lawsuits filed against the EPA and Corps over the WOTUS Rule. The stay has the same effect as an injunction, preventing the EPA and Corps from implementing the new WOTUS Rule. Meanwhile, the former definition of "waters of the United States" and the regulatory framework which existed prior to the new rule's adoption will remain effective. In August, a federal judge in North Dakota issued an injunction preventing the EPA and Corps from implementing the new regulations, but the injunction was limited to 13 states: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming. The WOTUS Rule took effect throughout the rest of the nation on Aug. 28. The ruling by the Sixth Circuit is significant because
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it prevents the Rule's implementation and application nationwide—including in California. The Court's ruling also suggests excellent news for litigants challenging the WOTUS Rule in court—including CCA, which has filed a lawsuit against the EPA and Corps along with the Pacific Legal Foundation and a number of other industry allies in Minnesota (part of the Eighth Circuit). In justifying its stay, the Sixth Circuit found that opponents of the Rule have a substantial likelihood of success on two separate claims underlying the lawsuits: first, that the WOTUS Rule exceeds the agencies' authority under the Clean Water Act and Supreme Court decisions interpreting the Act, and secondly, that the Final WOTUS Rule differed substantially from the Proposed WOTUS Rule without proper opportunity for public notice and comment on key elements of the Final Rule. It is important to note that the judges did not decide those two issues, but merely used the likelihood of success as a factor favoring the stay. CCA will continue to oppose the disastrous WOTUS Rule, and will keep you informed on any developments on the issue.
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November 2015 California Cattleman 35