A three-judge panel based in Cincinnati, Ohio, decided the so-called WOTUS rule, which widens the jurisdiction of the EPA and Army Corp, was unduly broad in its interpretation of their authority.

Cooper david
Managing Editor / Progressive Cattle

The WOTUS rule is an executive order applied under the Clean Water Act (CWA) attempting to place smaller streams, tributaries and ponds under federal authority under two agencies.

In late August, a group of 13 states from the West and Midwest won arguments in a North Dakota federal district court that the interpretation was excessive and earned a stay for those states. The EPA responded by saying other states that were not part of the North Dakota filing would be subject to the rule that went into effect.

The two judges ruling for the petitioning states said the WOTUS rule’s treatment of tributaries, adjacent waters and waters having a significant nexus to navigable waters “is at odds with the Supreme Court’s ruling in Rapanos” and further that “the rule-making process by which the distance limitations were adopted is facially suspect.”

The court also determined that because the rule had been stayed in 13 states, a nationwide stay would better serve uniformity until the courts can fully examine the issue.


“A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new rule and whether they will survive legal testing,” said the majority on a three-judge appeals court panel.

Numerous agricultural groups and state governments were in opposition to the rule, issued in May, for its widened authority. Most major rivers, streams and lakes are already under protection of the CWA.  end mark