June 01, 2023

Another court rules against WOTUS

Another court rules against WOTUS 

By: Sydney Sheffield 

The Sixth Circuit Federal Court of Appeals has issued a stay on enforcing the Waters of the United States (WOTUS) rule in Kentucky. This decision means WOTUS is only law in 23 states. President Joe Biden recently vetoed a bill that would overturn WOTUS. Read more about the President’s decision in this Taking Stock DC article discussing the vetoed bill. 

A federal judge had previously denied a request by the State of Kentucky and the Kentucky Chamber of Commerce to issue an injunction against WOTUS. The State and Chamber then asked the appellate court to issue a stay pending their appeal. 

In their ruling, Circuit Court Judges Ralph Guy, Raymond Kethledge, and John Bush said they granted the stay because the federal government failed to identify any particular interest in immediate enforcement of WOTUS. The three-judge panel also that the rule would unnecessarily burden farmers and landowners engaging in everyday farming activities and overturned a lower court ruling.

“The Sixth Circuit agreed with our office and ruled that the Biden Administration cannot impose new federal controls over Kentucky’s waters,” said Attorney General Cameron.  “This unanimous ruling gives our farmers, and all Kentuckians, much needed relief from the Biden Administration’s regulatory overreach, and we will continue to stand up for the rights of Kentuckians.”

Kentucky is now one of 25 states where WOTUS has been overturned or paused. Previously, a U.S. District Court in North Dakota issued a preliminary injunction effectively overturning the Biden administration’s WOTUS rule in 24 states. The judge agreed with those states’ argument that WOTUS poses a threat to their sovereign rights and amounts to irreparable harm. Additionally, the judge stated that states would expend unrecoverable resources complying with a rule unlikely to withstand judicial scrutiny.

Multiple lawsuits regarding WOTUS are still underway, but the biggest ruling could be the Supreme Court’s decision in the Sacket v. EPA case. The Supreme Court will decide whether the U.S. Court of Appeals for the 9th Circuit set forth the proper test for determining whether wetlands are "waters of the United States" under the Clean Water Act. A decision is expected to be made this summer. 

Katherine English, a practicing attorney, and family farmer in Florida, wrote an opinion for the American Farm Bureau Federation (AFBF), stating the importance of the Supreme Court decision and the harm of WOTUS. “The only way we as farmers can mitigate the risk of this WOTUS rule is to invest time, expertise, and a lot of money to obtain a jurisdictional determination from the agencies on whether the act does or does not apply to our land. The cost of work done by biologists, engineers, lawyers and possibly geologists for the determination will be borne by the farmer. If we don’t seek a determination, we have no way of knowing if our normal farm and ranch work will trigger the act’s harsh civil and criminal penalties. Adding insult to injury, the agencies falsely claim that the costs to farmers to comply with this WOTUS rule are de minimis (too small to be taken into consideration).”