The U.S. Court of Appeals for the Sixth Circuit last week issued a nationwide preliminary injunction that suspends implementation of the controversial Waters of the United States (WOTUS) rule. The rule, which would expand the jurisdiction of the Environmental Protection Agency and the U.S. Army Corps of Engineers, previously had been stayed in 13 states, but the stay now covers the entire country.
The agencies claim that the WOTUS rule clarifies their jurisdiction over navigable waters, their tributaries and other waters, including wetlands and streams. However, 18 states and a variety of business organizations challenged the rule, claiming that it unlawfully expands the agencies’ authority over much small water ways, including ponds, creek beds and intermittent streams caused by heavy rainfall.
The existing Clean Water Act limits the jurisdiction of EPA and the Army Corps regarding discharges of pollutants to navigable waters. The agencies previously attempted to define the extent of their jurisdiction, but that rule was unable to withstand judicial scrutiny. The agencies’ latest attempt was published in the Federal Register this past June.
IDFA will continue to monitor this litigation because it could have an impact on dairy companies. If the new rule is upheld, dairy foods companies owning property that is classified as U.S. water will have to determine whether any activity they conduct is covered by the rule. They may then have to obtain a permit or face severe criminal and civil penalties.
For more information, contact Emily Lyons, IDFA’s director of regulatory affairs and counsel, at email@example.com.