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WOTUS Rule Blocked in 13 States
Thirty-Five States Have Taken Legal Action





A federal judge in North Dakota has blocked the Clean Water Rule from taking effect in Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming. Congress' return on September 8 is the next chance to pass S. 1140, which would require EPA to withdraw the bill.



A federal judge in North Dakota has blocked the Clean Water Rule authored by the Environmental Protection Agency and the Army Corps of Engineers under the Clean Water Act from taking effect August 28 in 13 states. The rule attempts to clarify which "Waters of the United States" are overseen by the federal government. It is unclear at this time if the ruling reaches beyond those 13 states.

Although the Clean Water Act (CWA) has been in place since 1972, the new rule greatly expands the scope of waters that come under federal jurisdiction. Thirty-five states have taken legal action to try to halt the new rule, alleging the measure violates the Clean Water Act and impedes on state rights. In addition to the North Dakota ruling, federal judges in other states are still considering injunctions that would block the rule further.

According to an update from NAHB chairman Tom Woods, "the court found that the EPA misinterpreted the Clean Water Act, and the rule likely does not comply with the Supreme Court precedent. Additionally, it found that the EPA has not given the public a fair chance to comment on the rule, and that the final rule would be considered a vast departure from the proposed rule initially seen by the public."

The 13 states where the ruling has been temporarily halted are Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.

"As an association, we were not pleased with how this rule developed, and we will continue to support legislation to withdraw the rule, including Senate Bill 1140, which aims to get impacted stakeholders a sea at the table to develop a new rule that creates more certainty and bright lines" said Chava McKeel, director of government relations for the Golf Course Superintendents Association of America. "GCSAA will continue to serve as an information source to assist with compliance for members and the entire golf industry."

Introduced in April, Senate Bill 1140 would require the EPA and the Corps of Engineers to immediately withdraw the WOTUS rule, complete economic analyses and adhere to certain principles when introducing any new rule. H.R. 1732 is the companion to S. 1140 and has already passed the full House.

The National Association of Landscape Professionals is watching the litigation discussion closely, and will continue to provide interested parties with further updates and analyses. Congress returns on Tuesday, Sept. 8, which means there is an opportunity to pass S. 1140, which if passed, and signed into law by President Obama, would require EPA to rewrite many aspects of the rule including definitions of adjacency, significant nexus, tributaries and what constitutes a ditch.

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August 19, 2017, 11:41 am PDT

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Last Updated 08-16-17