Supreme Court: Water rule suits should begin in trial courts

Wisconsin State Farmer

WASHINGTON (AP) — Opponents of an Obama administration rule aimed at protecting small streams and wetlands from development and pollution now know which courts should be hearing their lawsuits.

U.S. Supreme Court

The Supreme Court ruled unanimously Monday, Jan. 22, 2018, that litigation over the  “Waters of the US” Rule (WOTUS) should begin in the lowest level of federal courts, not in the federal courts of appeal. Justice Sonia Sotomayor delivered the opinion.

Critics say the 2015 water rule vastly expanded the definition of a waterway that can be regulated by the Environmental Protection Agency and the Army Corps of Engineers, calling it a case of federal government overreach.

The rule has never taken effect because of lawsuits and is now under review by President Donald Trump's administration.

The 2015 rule sought to settle a debate over which waterways are covered under the Clean Water Act. The debate has dragged on for years and remained murky despite two Supreme Court rulings.

President Barack Obama's administration redefined "waters of the United States" protected under the act to include smaller creeks and wetlands.

Ellen Steen general counsel of the American Farm Bureau Federation said the U.S. Supreme Court ruled correctly regarding the jurisdiction to review the 2015 WOTUS rule.

"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," Steen said. "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."

At this time, the Environmental Protection Agency has not yet finalized its proposed rule to delay the application of the 2015 WOTUS rule while the agency considers whether to permanently repeal that rule.

"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 added.

EPA says there's no reason to be concerned.

“The Trump administration’s stay of the 2015 WOTUS rule will very likely be complete before any change in court jurisdiction can be finalized, or the Obama administration’s overreaching definition of WOTUS can be implemented,” EPA spokesperson Liz Bowman said in a statement.

North Dakota Attorney General Wayne Stenehjem, who lead a coalition of 12 states that obtained the first preliminary injunction against the "Waters of the U.S. Rule" in 2015, applauded the high court decision on the water rule and says he will ask the federal district court to resume North Dakota's case as soon as possible now that the jurisdiction issues has been resolved.

“This is a major victory for North Dakota and our economy,” said Stenehjem. “We have argued from the beginning that the District Court here in North Dakota is the proper place for this litigation. It is significant that the Supreme Court unanimously agreed with our position so we can continue our challenge to this unacceptable federal overreach,” he said.

Wisconsin was also part of the multi-state coalition.