WOTUS Opposition Suffers Setbacks

Last Thursday, a federal appeals court stood by its decision that challenges to the Obama administration’s controversial water rule belong with it, rather than having to first go through district courts. The Cincinnati-based 6th Circuit Court of Appeals on Thursday denied petitions, NALP and other industry groups, states, and property rights activists opposing the Waters of the U.S. rule that asked that the court to rehear arguments on the question. Those groups argued that under the Clean Water Act, challenges to the rule must begin in district court. In February, a three-judge panel issued a splintered 2-1 opinion ruling that the challenges belong with it, although the concurring judge said he disagreed with the decision but felt bound by precedent. Opponents of the rule, also known as the Clean Water Rule, hoped that could open the door for a rehearing before the full court.

On the same day, the Senate voted 56-42 to defeat an amendment that would have blocked funding for the Environmental Protection Agency’s Water of the United States rule in the energy and water appropriations bill.

The amendment, offered by Sen. John Hoeven (R-N.D.), would have blocked the Army Corps of Engineers from developing, adopting, implementing, administering or enforcing any change to the regulations for the definition of waters under the Federal Water Pollution Control Act. Under the WOTUS final rule, the EPA extended its authority to include waters that have a “significant nexus” with “navigable” waters, including a 4,000-foot buffer zone around those waters. A broad interpretation of the language could include nearly any water body, regardless of size or level of permanence. The U.S. Court of Appeals for the 6th Circuit issued a stay of the rule in October.

The day before the senate vote on the Hoeven amendment, the White House issued a veto threat for the bill if the measure included “problematic ideological provisions that are beyond the scope of funding legislation.” NALP continues to monitor the issue closely and strongly opposes the implementation of the current rule.

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