Written by: Ellen Essman, Sr. Research Associate, and Evin Bachelor, Law Fellow
Here’s our latest gathering of agricultural law news that you may want to know:
GIPSA as we know it is no more. A rule was released November 29, 2018 by the USDA as part of the Trump administration’s ongoing efforts to reorganize the agency. Of particular note, the rule, which was published in the Federal Register, eliminates the Grain Inspection, Packers and Stockyards Administration (GIPSA) as a “stand-alone agency.” According to the GIPSA website (which is currently still available here), the agency “facilitate[d] the marketing of livestock, poultry, meat, cereals, oilseeds, and related agricultural products, and promote[d] fair and competitive trading practices for the overall benefit of consumers and American agriculture.” The new administrative rule relocates GIPSA responsibilities to the Agricultural Marketing Service (AMS) Administrator. The change is not without controversy, as some farmers and agricultural groups argue that the protection of farmers through fair trading practices is antithetical to AMS, an agency responsible for marketing and promoting commodities. The rule is available here.
Supreme Court considers when habitat is “critical habitat” under the Endangered Species Act. The Supreme Court of the United States ruled in favor of private landowners when it recently determined that protected "critical habitat" for an endangered species must be habitat in which the species could actually survive. The Court's decision in Weyerhaeuser Co. v. United States Fish and Wildlife Service et al involved the dusky gopher frog, an endangered species that once lived throughout the coastal regions of Alabama, Louisiana, and Mississippi. Some of the habitat deemed by the U.S. Fish & Wildlife Service to be protected "critical habitat" for the frog was not actually occupied by the frog, and was instead being used for commercial timber production. Weyerhaeuser and other affected landowners brought suit, claiming that the land couldn't be critical habitat because the frog could not survive there without significant human intervention, such as intensive tree planting. The Court agreed that critical habitat "cannot include areas where the species could not currently survive." Weyerhouser and other landowners had also challenged the agency's cost-benefit analysis for the critical habitat designation, but the Fifth Circuit Court of Appeals disagreed and stated that it had no power to review the FWS analysis. The Supreme Court disagreed, stating that federal courts can review an agency's economic impact analysis to determine whether the agency abused its discretion or was arbitrary and capricious. With that guidance, the Supreme Court remanded the case back to the Fifth Circuit for further proceedings. The Supreme Court’s decision is here.
A second judge finds that Trump’s WOTUS repeal was not procedurally sound. Surprise, surprise, the WOTUS, or “waters of the United States” rule is in the news again. In many previous blog posts, we have chronicled decisions on the ever-present WOTUS rule (search “WOTUS” in our search bar for our other posts). Readers will recall that last February, the Trump administration published a new rule which was meant to repeal Obama’s WOTUS rule and replace it with the pre-2015 definition of WOTUS until a new definition could be developed. Trump’s rule was published on February 6, 2018, giving the administration until 2020 to come up with a new definition. On August 16, 2018, a district court judge in South Carolina found that the Trump administration did not comply with the requirements of the Administrative Procedure Act (APA) when it enacted the February 6 rule. Similarly, on November 26, 2018, Judge John Coughenour in the Western District of Washington found that “by restricting the content of the comments solicited and considered [about the February rule], the Agencies deprived the public of a meaningful opportunity to comment on relevant and significant issues in violation of the APA’s notice and comment requirements.” Rulemaking that violates the APA is invalid. Judge Coughenour’s full decision is available here.
Both the South Carolina and the Washington state district court decisions are applicable to the entire country. As a result, one might think that the Obama WOTUS rule should be in effect nationwide. However, it is important to remember that in some states, there are injunctions against carrying out Obama’s WOTUS rule. This means that it cannot be carried out in those states, and that the pre-2015 rule is actually effective in those states. EPA has a map depicting which version of the rule applies where. Uncertainty and WOTUS seem to be synonymous these days. The only thing we know for certain is that the WOTUS saga is not over, meaning things are likely to change again in the future.
Ohio Treasurer pioneers paying taxes with Bitcoin. Any business operating in Ohio may now pay certain taxes to the state of Ohio using Bitcoin, as recently announced by outgoing Ohio Treasurer Josh Mandel. The move makes Ohio the first state to accept Bitcoin as a form of tax payment. The official press release expressed hopes that other cryptocurrencies could be used, but at this time only Bitcoin will be accepted. Cryptocurrencies are said to be secure because they use blockchain, which is a digital register of transactions and information that is difficult to modify because changes to the register cannot be done by any single user. The Treasurer’s Office has specified 23 different taxes that can be paid with cryptocurrencies, including: Commercial Activity Taxes (CAT), consumer’s use taxes, Interest on Lawyers Trust Accounts (IOLTA) taxes, Pass-Thru Entity (PTE) taxes, sales taxes, and more. Paying with cryptocurrency is being accepted as an additional form of payment, as businesses can still pay with ACH credit, ACH debit, check, and money order. However, the state will not keep the cryptocurrency, but instead will use a third party to cash out the Bitcoin and convert it into U.S. dollars before depositing them into the state’s account. For more information, visit www.OhioCrypto.com or view the Treasurer’s Frequently Asked Questions page here.
Bayer prepares to bear with multiple jury trials over Monsanto’s glyphosate. Bayer AG continues to battle more and more plaintiffs claiming that their health problems were caused as a direct result of Monsanto’s Roundup and glyphosate. Another 600 plaintiffs have reportedly sued Bayer/Monsanto in the past two months since we last reported the number of lawsuits initiated with this argument. Following the multi-billion dollar verdict in California state court late this summer, more jury trials are set to begin. Over 620 cases have been filed in federal court, and the first case to reach a federal jury is now set for trial in San Francisco in February 2019. Another California state court case has been fast-tracked to be heard in March 2019 because of the condition and age of the plaintiffs. Yet another case is expected to be scheduled in Missouri state court for sometime later in 2019. The cases largely depend upon a plaintiff’s ability to convince a jury that his or her cancer was more likely than not directly caused by glyphosate. This question because controversial in 2015 when the United Nation’s World Health Organization released a report stating that the widely used herbicide is “probably carcinogenic to humans.” However, the U.S. Environmental Protection Agency issued a release in 2017 saying that its own findings demonstrate that glyphosate is unlikely to be carcinogenic in humans.
Is this pumpkin pie made of pumpkin? Thanksgiving dinner conversations often involve at least one debate for many families. Prompted by recent coverage in news outlets like the Wall Street Journal, one of the topics this year was whether grandma’s pumpkin pie is made of pumpkin, and whether it should be. At one end of the debate are those who say that pumpkin pie must be made from pumpkins, while others say that closely related squashes have a better flavor and consistency that make a pie taste the way a “pumpkin pie” should taste. Central to this debate is the status of firm-shelled, golden-fleshed sweet squash, which currently makes up a large portion of the market for “canned pumpkin.” The U.S. Food and Drug Administration (FDA) has a long-standing policy saying that labeling the golden-fleshed, sweet squash as “pumpkin” complies with the Food, Drug, and Cosmetic Act and the Fair Packaging and Labeling Act. Since 1938, the FDA has “consistently advised canners that we would not initiate regulatory action solely because of their using the designation “pumpkin” or “canned pumpkin” on labels for articles prepared from golden-fleshed, sweet squash, or mixtures of such squash with field pumpkins.” The FDA explains that allowing current labeling practice does not seem to mislead or deceive consumers. While the FDA declines to take a stand on the issue, families are free to continue to debate which ingredients make for the best pumpkin pie.
It's Farm Science Review week! Be sure to visit us in the Firebaugh Building to get your questions answered and pick up copies of our Law Bulletins and a helping of candy corn. We'll be speaking on "Pond Liability" at the Gwynne Conservation Area on Wednesday and on "Estate Planning: Mistakes to Avoid" in the Ask the Experts session everyday.
Here's our gathering of ag law news you may want to know:
Movement on Ohio “Watersheds in Distress” rules. As we have reported on several times this summer, Governor John Kasich signed an executive order on July 11, 2018 directing ODA to “consider whether it is appropriate to seek the consent of the Ohio Soil and Water Commission (OSWC) to designate” certain watersheds “as watersheds in distress due to increased nutrient levels resulting from phosphorous attached to soil sediment.” Since that time, ODA has submitted a proposed rule dealing with Watersheds in Distress. Amendments were made to the proposed rule after evaluating the first set of public comments, and ODA is now resubmitting the rules package. ODA reopened the proposed rule for public comments, but it closed the comment period on September 7, 2018. Information about the proposed rules, as well as how and where to comment, can be found here (click on the “Stakeholder Review” tab and then the “Soil and Water Conservation – Watersheds in Distress OAC 901:13-1” drop down option). A draft of the newly amended proposed rules is available here.
WOTUS woes continue. The Obama administration’s hotly contested “Waters of the United States” Rule is back in the news, and this time, where it applies is dependent on where you live. A background on the rule can be found in our previous blog post. The rule basically expanded which bodies of water qualify as “waters of the United States,” which in turn protected more waters under the Clean Water Act. The rule became effective in 2015. Since that time, U.S. District Courts in North Dakota and Georgia have issued preliminary injunctions against Obama’s WOTUS Rule, which means it cannot be carried out in twenty-four states. Additionally, last summer, the EPA and Army Corps of Engineers, under the direction of President Trump, announced their plan to repeal Obama’s WOTUS Rule and replace it with the definition of WOTUS “that existed prior to 2015” until a new definition could be developed. Trump’s rule was published on February 6, 2018, giving the administration until 2020 to come up with a new definition. However, in a ruling on August 16, 2018, in a U.S. District Court in South Carolina, Judge David Norton determined that the Trump administration “failed to comply with” requirements of the Administrative Procedure Act when it enacted its rule. This means that the Trump rule repealing and replacing the definition of WOTUS is invalidated. As a result of Judge Norton’s decision, in the remaining twenty-six states without an injunction, the Obama administration’s version of the rule has been reinstated. Ohio is one of the twenty-six states where the Obama rule currently applies. Will the Trump administration and the EPA respond to Norton’s decision by announcing yet another new WOTUS rule? Follow the Ag Law Blog for any updates. In the meantime, the country remains nearly split in half by which version of the WOTUS rule is carried out.
Regulators, meet “meat.” Under a new Missouri law, it is a criminal offense to misrepresent a product as “meat” if there is, in fact, no meat. Missouri’s revision of its meat advertising laws took effect on August 28th, and has been dubbed by many as the first attempt by a state to regulate what qualifies as meat. Defining meat as “any edible portion of livestock, poultry, or captive cervid carcass,” the law prohibits “misrepresenting a product as meat that is not derived from harvested production livestock or poultry.” Violations are treated as a misdemeanor, with a fine up to $1,000 and possible jail time. The Missouri Department of Agriculture has said that it intends to enforce the law, but that it plans to give affected companies until the start of next year to bring their labels into compliance. Supporters of the law, like the Missouri Cattlemen’s Association, argue that it will provide consumers with accurate information about their food, and also protect meat producers from unfair labeling of plant-based or lab-grown meat alternatives. Opponents have already filed a lawsuit to prevent enforcement, arguing that the law restricts free speech and improperly discriminates against out-of-state producers of meat alternatives. The named plaintiff on the lawsuit is Turtle Island Foods, an Oregon company that does business under the names Tofurky and The Good Foods Institute. The company makes plant-based food products, and is joined in its opposition by the American Civil Liberties Union of Missouri and the Animal Legal Defense Fund. Beyond Missouri, the National Cattlemen’s Beef Association has listed the issue as a top policy priority for this year, and the U.S. Cattlemen’s Association has petitioned the USDA to adopt stricter labeling requirements. As this issue develops, the Ag Law Blog will keep you updated.
USDA taps Commodity Credit Corporation to aid farmers. Readers are no doubt aware of global trade disputes in which other countries have increased tariffs on American agricultural exports. Given the extensive news coverage, the Harvest will not attempt to cover the dispute in depth; however, one point that has been less covered is the tool that the USDA has selected to provide relief to impacted farmers: the Commodity Credit Corporation. What is it? The Commodity Credit Corporation (CCC) is a federal government entity created during the Great Depression in 1933 to “stabilize, support, and protect farm income and prices.” Since 1939, it has been under the control of the Secretary of Agriculture, although it is managed by a seven member Board of Directors. CCC is technically authorized to borrow up to $30 billion from the U.S. Treasury at any one time, but due to trade agreements, that number is, in reality, much smaller. This gives USDA access to billions of dollars in funding without having to go to Congress first. The money can be used to provide loans or payments to agricultural producers, purchase agricultural products to sell or donate, develop domestic and foreign markets, promote conservation, and more. CCC has no staff, but is instead administered through other USDA agencies, largely the Farm Service Agency and Agricultural Marketing Service. On August 27th, Secretary of Agriculture Sonny Perdue announced that USDA plans to tap the Commodity Credit Corporation for up to $12 billion worth of aid to farmers affected by recent tariffs. The Market Facilitation Program will provide direct payments to eligible corn, cotton, dairy, hog, sorghum, soybean, and wheat producers, and the Food Purchase and Distribution Program will purchase up to $1.2 billion in select commodities. For more about the Commodity Credit Corporation, check out its website.
Bayer reports increasing number of lawsuits against newly acquired Monsanto. Bayer, the German pharmaceutical and life sciences company that acquired Monsanto early this summer, has indicated that there are an increasing number of lawsuits in the United States alleging that its weed killers cause cancer. According to the Wall Street Journal, there were roughly 8,700 plaintiffs seeking monetary damages from Bayer as of late August, a sharp increase from the 5,200 plaintiffs just months earlier. Many of these lawsuits involve cancer patients who claim that Monsanto’s glyphosate-containing herbicides like Roundup caused their cancer. As we reported in a previous edition of the Harvest, one person’s successful lawsuit against Monsanto resulted in a San Francisco jury award of $289.2 million for failing to warn consumers of the risks posed by its weed killers. Monsanto is expected to file motions for a new trial and for the judge to set aside the verdict, and may ultimately appeal the decision. These cancer-related claims come at a time when another Monsanto product, Dicamba, is causing great controversy. Stay tuned to the Ag Law Blog as these lawsuits continue to develop.
Written by Ellen Essman, Sr. Research Associate
Here’s our gathering of recent agricultural law news you may want to know:
Kasich’s Executive Order delayed. As we previously wrote about, Governor John Kasich signed an executive order earlier this month which directed ODA to “consider whether it is appropriate to seek the consent of the Ohio Soil and Water Commission (OSWC) to designate” certain watersheds “as watersheds in distress due to increased nutrient levels resulting from phosphorous attached to soil sediment.” The OSWC voted on July 19 to delay Kasich’s executive order, which means that the eight watersheds will not be labeled “watersheds in distress” at this time. Instead, a subcommittee of the OSWC is tasked with researching and determining if each of the watersheds should be listed as “watersheds in distress.” More information on this delay is available in Ohio’s Country Journal.
ODA to submit “Watersheds in Distress” rule package. In more news regarding “watersheds in distress,” ODA is expected to propose a new rule package. While rules concerning watersheds in distress already limit the land application of manure on farms, the new rules would also limit the application of “nutrients,” which are defined as “nitrogen, phosphorus, or a combination of both.” Stay tuned to the Ag Law Blog for any updates on this rule package!
ODA upgrades website. The Ohio Department of Agriculture updated its website last month. The update includes a section with frequently asked questions and answers for each of the separate Divisions. For example, the questions frequently asked about food safety, making and selling food are available here. Head to www.agri.ohio.gov to check it out the new ODA website.
Additional comments sought on WOTUS. On July 12, 2018, the Army Corps of Engineers and the EPA published a supplemental notice of proposed rulemaking in the Federal Register. The supplemental notice is meant to “clarify, supplement and seek additional comment on” last summer’s proposal to repeal the 2015 Waters of the United States (WOTUS) Rule. As a reminder, the 2015 WOTUS rule expanded the meaning of “waters of the United States,” or those waters protected under the Clean Water Act, to include “tributaries to interstate waters, waters adjacent to interstate waters, waters adjacent to tributaries of interstate waters and other waters that have a significant nexus to interstate waters.” If the 2015 WOTUS rule is repealed, then the pre-2015 regulations defining WOTUS will be recodified. The agencies are seeking additional comments on the proposed rulemaking through this supplemental notice. The comment period is open through August 13, 2018. Comments can be left here.
Ohio legislation on the move
- Dogs on patios. H.B. 263, which we have been following, was sent to the Governor on 7/24/2018. Kasich’s signature would mean that food establishments and food service operations could permit customers to bring a dog into an outdoor dining area if the dog is vaccinated. Each establishment must adopt a policy requiring customers to control their dogs and to keep their dogs out of indoor areas. See our previous coverage of this legislation here and here.
The U.S. Supreme Court ruled earlier this week in National Association of Manufacturers v. Department of Defense that a federal district court is the proper forum for challenges to the substance of the “Waters of the United States” (WOTUS) rule. The holding brings clarification for parties raising similar types of challenges under the federal Clean Water Act, who often filed cases in both the district and appellate courts due to confusion over which court has jurisdiction over the cases. Litigants can now be sure that the case should originate with the federal district court, which provides greater access for similar challenges but could create more inconsistent rulings around the country. The court’s decision arrives at an odd time, with the evolving WOTUS landscape now focused on formulation of a new WOTUS rule to replace the rule that is under fire.
The court’s reasoning
The Supreme Court’s decision in this case is not surprising, a result of attention to the express language of the Clean Water Act rather than to several interpretations advanced by the government. The Clean Water Act places authority over Clean Water Act challenges in the federal district courts, with seven exceptions that are to be heard by the appellate courts. The federal government argued that two of those exceptions applied to its drafting of the WOTUS rule. The court disagreed, concluding that WOTUS does not establish an “effluent limitation” nor does it result in the issuance or denial of a permit as argued by the government. The court recognized that it would likely be more efficient and uniform for such challenges to be heard by an appellate court, but that would require a rewriting of the statute.
WOTUS uncertainty remains
The Supreme Court sent the case back to the Sixth Circuit Court of Appeals with an order to dismiss the WOTUS petitions before that court, which consisted of all appellate cases challenging the rule that were previously transferred to the Sixth Circuit by the Judicial Panel on Multidistrict Litigation. Note that the Sixth Circuit had issued a nationwide stay of the WOTUS rule in 2015 pending determination of whether the rule was a valid exercise of agency authority. That stay will presumably disappear with the Sixth Circuit’s dismissal of the case, but some claim that the Sixth Circuit could seek to continue to enforce the nationwide stay. A federal district court in North Dakota had previously issued an injunction against the WOTUS rule in North Dakota and a dozen other states, so that injunction would continue to prevent implementation of the rule in those states if the Sixth Circuit removes its stay.
Further complicating the status of the WOTUS rule are the actions taken by the Trump administration, which issued a proposed rule last November to delay the rule’s effective date to 2020 and a second proposal last February to replace WOTUS with the rule that was in place previously while the EPA develops a new definition of WOTUS. The EPA has not finalized either of those rules. The federal district courts with WOTUS cases currently before them could choose to stay their cases pending the current administration’s rulemaking process. Alternatively, one of the federal district courts could issue a nationwide injunction against the rule.
Consistent with its history, WOTUS remains unclear. Agricultural interests will have to continue to wait and see what happens next.
Written by Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program
On June 27, 2017, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) announced their plan to repeal the Obama Administration’s Waters of the United States (WOTUS) Rule. The EPA and the Corps’ proposal involves two steps. First, the agencies propose to “rescind” Obama’s WOTUS rule and “re-codify,” or re-enter, the definition of WOTUS “that existed prior to 2015” into the federal regulations. The pre-2015 rule would serve as a placeholder until the agencies are able to carry out the second part of their plan. The second part of the plan involves developing and proposing a new definition of WOTUS. This announcement comes several months after President Trump called for either a repeal or revision of the WOTUS Rule in his February 28, 2017 Executive Order (EO). The EO was quickly followed by the EPA and other agencies filing a Notice of Intention to Review and Rescind or Revise the Clean Water Rule (Notice). The EO can be found here, and the Notice here.
What was the Obama Administration’s WOTUS Rule?
The WOTUS Rule went into effect on August 28, 2015. The Rule expanded the meaning of “waters of the United States,” or those waters protected under the Clean Water Act (CWA), to include “tributaries to interstate waters, waters adjacent to interstate waters, waters adjacent to tributaries of interstate waters, and other waters that have a significant nexus to interstate waters.” Furthermore, the Rule stated that tributaries are WOTUS when they flow into navigable waters, even if their flow was not constant. The rule also elaborated on the meaning of “adjacent waters.” For more information about the WOTUS Rule, see our blog post from earlier this year. The Rule as it was released in the summer of 2015 can be found here.
How will “Waters of the United States” be defined?
In the short term
Step one of the EPA and the Corps’ plan calls for a repeal of the Obama Administration’s definition of WOTUS, and a reimplementation of the WOTUS rule that existed prior to 2015. In order to do this, the agencies are proposing a rule. The proposed rule calls for the Code of Federal Regulations—in particular, 33 C.F.R. §328.3, to be amended to reflect the previous definition of WOTUS. Notably, this definition does not include the Obama Administration’s expanded descriptions of “tributaries” or “adjacent waters.” Furthermore, there is no mention of “significant nexus.” This interim definition of WOTUS proposed by the EPA and the Corps can be found in the proposed rule, here.
In the long term
The second step of the EPA and the Corps’ plan calls for the agencies to perform a “substantive re-evaluation” of the definition of WOTUS. Any re-evaluation of the definition will likely take Trump’s EO into account, which called for the EPA and other agencies to, in any “[f]uture [r]ulemaking,” “consider interpreting the term ‘navigable waters’” as Justice Scalia did in Rapanos v. U.S. The CWA defines “navigable waters” as “waters of the United States, including territorial seas.” Thus, “navigable waters” and “WOTUS” are one in the same. Scalia’s interpretation rejected the idea that navigable waters and WOTUS could come from channels where water flow was only occasional. Justice Scalia asserted that navigable waters/WOTUS must be, for the most part, permanent bodies of water. Given the language in Trump’s EO, it is likely that the second step of the plan will involve a proposed rule that includes a definition of WOTUS that closely resembles Scalia’s interpretation. More information on Scalia’s interpretation can be found in our earlier blog post.
It is important to keep in mind that even if the EPA and the Corps successfully repeal and replace the previous administration’s definition of WOTUS, it is still very likely that opponents will challenge any new definition. Furthermore, both the short term and long term parts of the plan have to go through the rulemaking process, including a comment and review period, before they can become effective. As a result, the debate over the meaning of WOTUS is likely far from finished.
Written by: Ellen Essman, Law Fellow, and Peggy Hall, Asst. Professor, OSU Agricultural & Resource Law Program
The controversial “Waters of the United States” (WOTUS) Rule suffered three governmental assaults this week. We reported earlier this year about litigation over the Rule and a Senate Resolution urging withdrawal of the Rule. Actions this week in the House of Representatives, the White House and the EPA echo the Senate’s sentiments and push the Rule further towards its demise.
The House Resolution
In the U.S. House of Representatives, Ohio’s Representative Bob Gibbs introduced a resolution on February 27, 2017 stating that the Rule should be vacated. House Resolution 152 declares that the Clean Water Act (from which the Rule derives) is one of the nation’s most important laws whose success requires cooperative federalism, under which federal, state and local governments have a role in protecting water resources. Based upon the foundation of cooperative federalism, “Congress left to the States their traditional authority over land and water, including farmers’ field, non-navigable, wholly intrastate water (including puddles and ponds), and the allocation of water supplies.” The Resolution asserts that the latest revision to the Rule, however, claimed broad federal jurisdiction over water that encroaches upon the authority of the States and undermines the Clean Water Act’s historical exemptions from federal regulation. The Resolution also claims that the EPA failed to follow proper processes when issuing the Rule.
The Executive Order
President Trump’s executive order (EO) issued on February 28, 2017 calls for the EPA and the Army for Civil Works (“Civil Works”, a part of the Army Corps of Engineers) to “rescind or revise” the WOTUS Rule. It is important to note, however, that the EO does not abolish the Rule; it simply orders the two agencies to review the Rule and try to adapt it to the Trump administration’s policies. The EO includes a policy statement explaining that it is in the best interest of the United States to keep “navigable waters… free from pollution,” but there is also a strong interest in promoting economic growth, so any changes to the Rule must balance both of those interests. The EO also gives the Attorney General the discretion to communicate any potential changes to the WOTUS Rule to federal courts with pending WOTUS litigation.
The EO further directs the EPA and Civil Works, when revising or rescinding the WOTUS Rule, to construe “navigable waters” as Justice Scalia did in the Supreme Court case Rapanos v. U.S. Under the Clean Water Act, “navigable waters” are defined as “waters of the United States, including territorial seas.” This means that the terms “navigable waters” and “waters of the United States” are interchangeable. In Rapanos, Justice Scalia, who wrote the decision for a plurality of the Court, asserted that navigable waters/WOTUS cannot be “ordinarily dry channels through which water occasionally or intermittently flows.” Instead, they must be “relatively permanent, standing or flowing bodies of water,” or wetlands with a “continuous surface connection” to permanent water bodies. Scalia’s interpretation is at odds with the interpretation contained in the Obama administration’s WOTUS Rule.
Agency Response to the Executive Order
EPA Administrator Scott Pruitt and Civil Works acting Secretary Douglas Lamont didn’t waste any time responding to Trump’s EO. On the same day Trump signed the Order, the agencies filed a Notice of Intention to Review and Rescind or Revise the Clean Water Rule. In the notice, the agencies explain their intentions to follow the EO, review the Rule and consider adopting Justice Scalia’s interpretation of navigable waters. The agencies state that they will utilize new rulemaking to “provide greater clarity and regulatory certainty concerning the definition of ‘waters of the United States.’”
Refresher: What’s in the WOTUS Rule?
The Obama Administration’s WOTUS Rule was released in the Federal Register on June 29th, 2015, and went into effect on August 28th, 2015. According to the EPA and the Army Corps of Engineers at the time, the rule was meant to “clarify the scope of ‘waters of the United States’...protected under the Clean Water Act.” In particular, the Rule states that a number of bodies of water qualify as WOTUS, such as: “tributaries to interstate waters, waters adjacent to interstate waters, waters adjacent to tributaries of interstate waters, and other waters that have a significant nexus to interstate waters.” The Rule elaborates on the definition of “tributaries,” which are WOTUS if they flow “to a traditional navigable water, an interstate water, or the territorial seas,” regardless of whether the flow is year-round, seasonal, or due to precipitation. Tributaries flowing into navigable and interstate waters that have “a bed and banks,” as well as “an indicator of ordinary high water mark” qualify as WOTUS under the Rule. “Adjacent waters” means “all waters located in whole or in part within 100 feet of the ordinary high water mark” of WOTUS, as well as “all waters within the 100-year floodplain” of WOTUS. Numerous different kinds of water can be “adjacent,” such as “wetlands, ponds, lakes, oxbows,” and “impoundments.” More information about the WOTUS Rule is available here.
Update: On April 21, 2016, the Sixth Circuit Court of Appeals denied a request for en banc (full court) review of this decision made by agricultural groups and several states.
In a case successfully argued by Ohio’s Solicitor Eric Murphy, the Sixth Circuit Court of Appeals based in Cincinnati has determined that it has jurisdiction to hear challenges to the Clean Water Rule (WOTUS Rule) proposed by the U.S. EPA and Army Corps of Engineers. The Rule expands the geographic extent of the “waters of the United States” (WOTUS) that are subject to the Clean Water Act.
A brief background
When the agencies published the final WOTUS Rule last summer, dozens of parties and 31 states, including Ohio, filed challenges in nine federal district courts and eight federal courts of appeal. The filings raised an immediate uncertainty about whether federal district courts or federal courts of appeal have jurisdiction to review the Rule. Despite this uncertainty, the U.S. District Court for the District of North Dakota issued a temporary injunction that prevented the Rule’s application in the 13 states that were involved in that district’s litigation. Other district courts in West Virginia and Georgia declined to issue injunctions and instead ruled that they did not have jurisdiction to review the Rule. A federal panel consolidated the cases filed before the Sixth Circuit Court of Appeals, which includes the challenge by the State of Ohio. The Sixth Circuit first issued a nationwide stay of the WOTUS Rule last October before turning to the jurisdictional challenges raised by the EPA and Army Corps.
The Sixth Circuit’s fractured opinion
The decision on jurisdiction issued by the Sixth Circuit’s three judge panel is not harmonious. Judge McKeague wrote the court’s opinion and based jurisdiction on two of seven provisions in the Clean Water Act that grant appellate court jurisdiction to review EPA actions: subsection 1369 (b)(1)(E) for actions “approving or promulgating any effluent limitation or other limitation” under certain sections of the Act and subsection 1369(b)(1)(F), for actions issuing or denying National Pollutant Discharge Elimination System (NPDES) permits. Judge McKeague relies on a U.S. Supreme Court decision that interprets the “other limitations” language in 1369 (b)(1)(E) to include limitations that “indirectly” produce limitations on point source operators and permit issuing authorities. He also cites the Sixth Circuit’s earlier decision in National Cotton Council v. U.S. EPA to conclude that agency actions “issuing or denying” an NPDES permit under 1369(b)(1)(F) include actions creating “regulations governing the issues of permits” and “rules that regulate NPDES permitting procedures,” such as the WOTUS Rule.
A concurring opinion written by Judge Griffin agrees only with the requirement to follow the Sixth Circuit’s previous decision in National Cotton Council. Judge Griffin clarifies that he is bound by but does not agree with the court’s reasoning in that case, and would not otherwise accept jurisdiction under subsections 1369(b)(1)(E) or (F). In a dissenting opinion, Judge Keith agrees with the concurring opinion that neither subsection 1369(b)(1)(E) or (F) grants an appeals court jurisdiction in regards to the WOTUS Rule. Judge Keith also argues that Judge McKeague mistakenly relies upon and overly broadens the National Cotton Council decision, which he believes does not apply to the WOTUS Rule.
Despite the disagreements between the Sixth Circuit Court judges, the decision means that the nationwide stay of the WOTUS Rule remains in effect and the court will proceed to hear the circuit’s consolidated cases that challenge the WOTUS Rule. The court’s decision on jurisdiction applies only to the states within the Sixth Circuit—Ohio, Michigan, Kentucky and Tennessee. Given the range of reasoning in the Sixth Circuit’s decision, other federal courts could reach differing decisions on the question of which court has jurisdiction over the cases. If so, we can expect a request for the United States Supreme Court to review the jurisdictional issue. As we expected, the WOTUS Rule challenges will be with us for quite some time.
Read the Sixth Circuit’s opinion for In re: U.S. Dep’t of Defense & U.S. Envtl. Protection Agency Final Rule: Clean Water Rule at http://www.ca6.uscourts.gov/opinions.pdf/16a0045p-06.pdf.