Stagnant water | TSLN.com

Stagnant water

While a federal court suspended implementation of the Clean Water Rule or the Waters of the United States Rule in all 50 states recently, the Department of Justice has asked that it not be enforced. Staff photo

A federal court today issued a stay in the implementation of the Clean Water Rule, also known as the Waters of the United States rule, that has been promulgated by the Environmental Protection Agency and the U.S. Army Corps of Engineers.

The rule had taken effect on August 28, but another court ruling had stopped implementation in 13 states.

Farm groups and legislators immediately praised today's 2-1 ruling by a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit in Cincinnati. The ruling was on four different cases brought by 18 states that had been consolidated for handling as a multi-circuit case.

The 18 states are Ohio, Michigan, Tennessee, Oklahoma, Texas, Louisiana, Mississippi, Georgia, West Virginia, Alabama, Florida, Indiana, Kansas, Kentucky, North Carolina, South Carolina, Utah and Wisconsin.

In a joint statement, the EPA and the Army Corps of Engineers said "The agencies respect the court's decision to allow for more deliberate consideration of the issues in the case and we look forward to litigating the merits of the Clean Water Rule."

EPA and the Army Corps said, "The court acknowledges that clarification of the Clean Water Act is needed and that 'agencies conscientiously endeavored, within their technical expertise and experience, and based on reliable peer-reviewed science, to promulgate new standards to protect water quality that conform to the Supreme Court's guidance.'"

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The agencies also said the rule was developed "to respond to an urgent need to improve and simplify the process for identifying waters that are and are not protected under the Clean Water Act, and is based on the latest science and the law. The agencies' prior rule will remain in effect nationwide and we will continue to apply the best science and technical data on a case-by-case basis to waters at issue."

Judge David McKeague, writing for the majority, said the court believes that the plaintiffs "have demonstrated a substantial possibility of success on the merits of their claims."

"Petitioners first claim that the 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, where the court vacated the Sixth Circuit's upholding of wetlands regulation by the Army Corps of Engineers.

"Even assuming, for present purposes, as the parties do, that Justice Kennedy's opinion in Rapanos represents the best instruction on the permissible parameters of 'waters of the United States' as used in the Clean Water Act, it is far from clear that the new rule's distance limitations are harmonious with the instruction."

McKeauge also wrote that "the rulemaking process by which the distance limitations were adopted is facially suspect. Petitioners contend the proposed rule that was published, on which interested persons were invited to comment, did not include any proposed distance limitations in its use of terms like 'adjacent waters' and 'significant nexus.' "

"Consequently, petitioners contend, the final rule cannot be considered a 'logical outgrowth' of the rule proposed" required to comply with another court case.

"As a further consequence of this defect, petitioners contend, the record compiled by respondents is devoid of specific scientific support for the distance limitations that were included in the final rule," McKeague wrote.

McKeague also argued that the majority believes the court will have jurisdiction over the rule and that "a stay allows for a more deliberate determination whether this exercise of executive power, enabled by Congress and explicated by the Supreme Court, is proper under the dictates of federal law."

The judge continued, "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."

"A stay honors the policy of cooperative federalism that informs the Clean Water Act and must attend the shared responsibility for safeguarding the nation's waters.

"The Clean Water Act says 'It is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of the states to prevent, reduce, and eliminate pollution,' " he wrote.

"In light of the disparate rulings on this very question issued by district courts around the country — enforcement of the rule having been preliminarily enjoined in 13 states — a stay will, consistent with Congress's stated purpose of establishing a national policy, restore uniformity of regulation under the familiar, if imperfect, pre-rule regime, pending judicial review."

McKeague said the stay was granted "pending further order of the court," but did not say when the court might act again.

The judge did acknowledge that "the clarification that the new rule strives to achieve is long overdue."

"We also accept that respondent agencies have conscientiously endeavored, within their technical expertise and experience, and based on reliable peer-reviewed science, to promulgate new standards to protect water quality that conform to the Supreme Court's guidance."

But he added, "Yet, the sheer breadth of the ripple effects caused by the rule's definitional changes counsels strongly in favor of maintaining the status quo for the time being."

The American Farm Bureau Federation, which had filed a case in the U.S. District Court Southern District in Galveston, Texas, said, "The judges expressed deep concerns over the basic legality of this rule. We're not in the least surprised: This is the worst EPA order we have seen since the agency was established more than 40 years ago. The court clearly understood our arguments."

"We are confident that the courts will strike down this rule," Farm Bureau President Bob Stallman continued.

"Unfortunately, we also know stays don't last forever, and cases like this almost always take years to win. So we again ask the Senate to pass legislation to nullify this rule just as the House has already done. Farmers and ranchers cannot afford to wait."

Sen. John Hoeven, R-N.D., told The Hagstrom Report earlier this week that it is unlikely the Senate could assemble the 67 votes that would be needed to override an expected veto by President Barack Obama if the bill were sent to him.

National Cattlemen's Beef Association President Philip Ellis, a Wyoming producer, said "This is great news for cattlemen and women and all land users who have been at a loss as to how to interpret this rule."

"A stay by the court has the same effect as an injunction, and this action prevents the EPA and Army Corps from implementing this disastrous rule across the country," Ellis said. "In granting the stay, the majority of the court sided with the states that the rule likely fails on both substantive and procedural grounds."

"This is a huge victory for farmers," said National Pork Producers Council President Ron Prestage, a veterinarian and pork producer from Camden, S.C.

"The court rightfully stopped implementation of this massive federal land grab and confusion across the country until the numerous lawsuits against it can be resolved."

"The WOTUS rule is vague and fails to let regulated parties know when their conduct violates the law," Prestage said. "We all want clean water, but this regulation is just big land grab that promotes growth in the size of government and allows activists to extort and micromanage all kinds of farming and business activities."

"I applaud the court for halting the rule in all states to allow justice, and some might say commonsense, to play out," Senate Agriculture Committee Chairman Pat Roberts, R-Kan., said in a news release.

"Due to the widespread confusion and frustration with the new regulations and pending litigation, this ruling should send a clear signal to the EPA that the rule should be scrapped altogether."

"Ranchers and other stakeholders were ignored in the comment period during consideration of the proposed rule," Roberts added.

"The EPA stacked the deck against them. The process was flawed from the beginning and I commend the court for this finding in particular: 'Moreover, the rulemaking process by which the distance limitations were adopted is facially suspect.' "

Sen. John Barrasso, R-Wyo., said "Today's ruling is a welcome reprieve for farmers, ranchers and small-business owners across the country. The court's decision confirms that the EPA does not have the authority to completely circumvent Congress and the American people to further its radical regulatory agenda.

"The EPA is fixated on unilaterally imposing impractical, ideology-based rules. It's time for the agency to go back to the drawing board and work with Congress to write a reasonable rule that truly protects America's waterways while also safeguarding the rights of citizens."

Sen. Heidi Heitkamp, D-N.D., a co-author with Barasso of legislation to require EPA to revise the rule, said, "Delivering certainty to the farmers, ranchers, and small businesses should be a top priority for our federal agencies — but with the Waters of the U.S. rule, the EPA and U.S. Army Corps of Engineers have done the opposite — potentially regulating every Prairie Pothole on farmers' land."

"Today's court decision to follow North Dakota's lead by providing relief from this unworkable rule for the rest of the country's producers is an important step, but it's not enough," Heitkamp said.

"Congress must act to deliver the predictability our farmers, ranchers and small businesses depend on by passing my bipartisan bill to send this overbroad rule back to the Administration to redo — this time with the concerns of the rural communities it impacts in mind."

House Agriculture Committee Chairman Michael Conaway, R-Texas, said "This is a tremendous victory for agriculture and the 18 states that challenged the EPA on its egregious power grab."

"As the states continue challenging the rule, we will continue with our efforts in Congress to defeat the implementation of WOTUS," Conaway said.

–The Hagstrom Report

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