In 2015, the Obama-era Waters of the United States Rule raised serious concerns for thousands of landowners and small business owners who were previously unaffected by the Clean Water Act. It was a federal stretch—and NFIB took action in the form of a lawsuit.
Three years later, WOTUS remains murky, and NFIB continues to work for clarity.
Over the summer, NFIB submitted additional comments to the Environmental Protection Agency and the Army Corps of Engineers encouraging them to move quickly toward resolution. And NFIB recently heightened efforts to obtain a nationwide injunction blocking the WOTUS Rule.
Although the EPA and the Army Corps delayed enforcement until 2020, environmental activists scored a victory in August by obtaining an order from a federal court in South Carolina that made WOTUS immediately enforceable. However, that ruling only applied in 26 states across the country.
“The WOTUS Rule had already been blocked in a handful of states,” says Luke Wake, Senior Staff Attorney at the NFIB Small Business Legal Center. Wake explains, “For the rest of the country, the rule is now in force, which is tremendously problematic for affected landowners because the process for obtaining necessary federal permits is cumbersome, time-consuming, and exorbitantly expensive.”
Since the ruling, federal district courts in Georgia and Texas have blocked the rule, and a federal judge in North Dakota amended an existing injunction to cover Iowa. Now, NFIB is pressing for an injunction to provide relief for small business owners throughout the rest of the country.
“We now have this crazy checkerboard of states where WOTUS is enforceable and those where it’s been blocked.” Wake continued, “It’s vital that the federal courts provide relief for our members in the 22 states where WOTUS is now in effect because our members face the threat of both federal enforcement actions and civil lawsuits if they make even modest improvements to their lands without acquiring federal approval—a process that they should not be subjected to because the federal government has no business regulating land that is only very occasionally wet.”
- States where the WOTUS Rule has been blocked and is NOT in effect: Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Missouri, Mississippi, Montana, Nebraska, New Mexico, Nevada, North Carolina, North Dakota, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin, and Wyoming.
- States where the WOTUS Rule is in effect: California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Hampshire, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Oregon, Vermont, Virginia, Washington.
TAKE ACTION: If you have concerns with how the WOTUS Rule will affect your business, please let us know by filling out our brief survey.