NFIB Responds as Federal Judge Revives Obama WOTUS Rule

Date: August 27, 2018

A lot has happened since the summer of 2015 when the Obama Administration finalized its “Waters of the United States (WOTUS) Rule.” The WOTUS rule is highly controversial because it radically expands federal authority over private property across the country. And thanks to a federal judge in South Carolina, the Obama Rule is now in effect in 26 states. 

In response, NFIB is moving quickly to bring relief for affected landowners.

The good news is that half the country can breathe easy, as two separate federal courts have already issued orders prohibiting the EPA and Army Corps of Engineers from enforcing the WOTUS Rule. First, a federal district court in North Dakota blocked the Rule in a handful of states in 2015. And later a federal court in Georgia blocked the Rule in several other states. Here is a breakdown:

States where the WOTUS Rule has been blocked and is NOT in effect: Alabama, Alaska, Arizona, Arkansas, Colorado, Georgia, Florida, Idaho, Indiana, Kansas, Kentucky, Missouri, Montana, Nebraska, New Mexico, Nevada, North Carolina, North Dakota, South Carolina, South Dakota, Utah, West Virginia, Wisconsin, and Wyoming.

States where the WOTUS Rule is in effect: California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, New Jersey, New Hampshire, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, Texas, Tennessee, Oregon, Vermont, Virginia, Washington.

Now NFIB is asking a federal district court in Oklahoma to block the Rule throughout the entire country—to bring relief for our members nationwide. Here is a run-down of what has happened with NFIB’s WOTUS lawsuit, as well as developments from the Trump Administration:

2015 – NFIB filed its lawsuit in the Northern District of Oklahoma. In August 2015 a federal judge in North Dakota issued an order blocking the WOTUS Rule in several states. Then, in October 2015 the Federal Court of Appeal for the Sixth Circuit issued an injunction blocking the WOTUS Rule throughout the entire country.

2016 – The district court initially dismissed NFIB lawsuit, on the view that any challenge to the WOTUS Rule should have been brought in the Federal Court of Appeal for the Sixth Circuit, in Cincinnati. NFIB appealed to the Tenth Circuit Federal Court of Appeals, arguing that our lawsuit was properly filed in the Northern District of Oklahoma.

2017 – Pursuant to an order from President Trump, EPA and Army Corps proposed a rule to rescind WOTUS. Meanwhile, in the courts, the U.S. Supreme Court granted certiorari to decide whether WOTUS lawsuits should be heard first in federal district court (as NFIB argued), or in the Sixth Circuit (as the government argued).

Spring, 2018 – In January 2018 the U.S. Supreme Court sided with NFIB in holding that WOTUS lawsuits should be heard in the district courts; however, this meant that the Sixth Circuit’s nationwide injunction was no longer in effect. In response, the Trump Administration finalized a rule delaying implementation of the WOTUS Rule, while a district court in Georgia blocked the WOTUS Rule in a handful of other states.

Summer, 2018 — The Trump Administration’s rule delaying implementation of the WOTUS Rule was enjoined in August 2018. As a result, the WOTUS Rule is currently in effect in half the country. NFIB responded immediately by asking the federal court in the Northern District of Oklahoma to enter a nationwide injunction.

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