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Where does WOTUS go from here?

Since it's near the end of the calendar year, it's time to revisit the status of the Waters of the United States rule, also known as WOTUS. It might be time to speculate a little bit, as well, about where the present state of WOTUS goes from here.

On July 27, 2017, the Army Corps of Engineers and the Environmental Protection Agency published the proposed rule recodifying pre-existing rules and defining "Waters of the United States." This was the first step in a comprehensive two-step process that was meant to review and revise the definition of "waters of the united states" to be consistent with President Donald Trump's Executive Order of Feb. 28, 2017.

Step one was rescinding the old definition of WOTUS, which governs the administration of the federal Clean Water Act. Step two was the Corps and the EPA seeking formal notice and comment rulemaking to conduct a substantive reevaluation of the WOTUS definition.

Recall that the Clean Water Act governs the federal rules for farmers who wish to drain their land or install drain tile on their land. At present, the definition of WOTUS is broad, extending to potholes and playas that may never have been true "wetlands," but the drainage of which can result in heavy civil and criminal penalties for farmers who don't "cross their T's and dot their I's" to the satisfaction of the federal government.

Recall also that in 2015, hours before the Obama administration's WOTUS rule was to take effect, there was an injunction issued in a federal lawsuit, and that injunction prevented the Obama administration's WOTUS rule from taking effect in 13 states, including North Dakota. The judge in that matter, Judge Ralph Erickson of the U.S. District Court for the District of North Dakota, made a finding that "the risk of irreparable harm to the States is both imminent and likely" in issuing the temporary injunction stopping the rule from taking effect.

The states in that matter argued that the EPA exceeded its authority because the final rule violated the rights and sovereignty of the states to control their waters instead of the federal government controlling them. The court determined that the states sufficiently demonstrated that their claim is likely to prevail on the merits, which is a prerequisite to issuing the injunction.

Subsequent to Erickson's order, the U.S. Court of Appeals for the 6th Circuit in a different but similar case issued a nationwide stay on the Obama rule on Oct. 9, 2015. Now, the U.S. Supreme Court is reviewing the question of whether the Court of Appeals has original jurisdiction to review challenges to the 2015 rule.

In a related matter, on Nov. 16, the EPA and the Corps formally proposed a delay of the 2015 rule until sometime in 2020 at the earliest. This effectively puts the brakes on the change of any rule until the dust settles with all of the pending litigation, in addition to giving the Trump administration an opportunity to consider the lay of the land. The Trump administration and the present EPA has made no secret of their desire to restrict the scope of the WOTUS rule, which will be enormously popular and helpful with farmers who are trying to tend to their business without federal governmental interference.

An interesting corollary to this topic is the fact that Erickson, author of the aforementioned injunction, was recently confirmed and sworn in to the 8th U.S. Circuit Court of Appeals. This creates a vacancy at the U.S. District Court in North Dakota. Talk has been fairly quiet regarding Erickson's replacement, although Rob Port recently reported in SayAnythingBlog.com that Fargo Judge Wade Webb is "on the short list" to be nominated to that position. This much is certain: regardless of who replaces Erickson, this issue is not going away anytime soon.

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