Waters of the United States Fight Continues

The fight over the 2015 Waters of the Unites States (WOTUS) rule continues. Legislatively, there is a withdrawal provision in the House version of the Farm Bill, but it is considered one of the poison pill provisions for the Democrats in both Houses, leaving its future cloudy. In the regulatory space, the Environmental Protection Agency (EPA) posted a notice of withdrawal for the 2015 rule, and it is uncertain when it will be finalized. The EPA is working on a new rule, and Acting EPA Administrator Andrew Wheeler indicated in early October the rule would be released in the next 30 days, putting release sometime around the election and Pestworld. The new rule is expected to be finalized in 2019. Under the Trump administration, the EPA has been more willing to cooperate with states and to hear from businesses – including NPMA – so the new rule is expected to be less of an overreach and more of a clarification. The 2015 Waters of the United States (WOTUS) rule remains tied up in litigation. The nationwide stay has been lifted, leaving a patchwork of 22 states where the rule is now in effect. Multiple challenges seek to add additional states to the stay, and the future of the litigation is unclear, both on the procedure and the merits of the 2015 rule. The new rule will doubtless also immediately go into litigation, creating an unfortunate situation where this rule will be tied up in the courts for quite some time.