Court halts EPA's water rule

WOTUS implementation blocked until the court can make a final determination on the merits of the cases brought by 18 state attorneys general.

A federal court ordered the Environmental Protection Agency to stop enforcement nationwide of the waters of the United States rule. The Sixth Circuit Court ordered that the EPA cannot go forward with the rule until courts have had an opportunity to understand it effects on stakeholders, including farmers and ranchers.

The challenge was brought by the attorneys general for 18 states who filed lawsuits against the EPA and was combined into one lawsuit.  

A three judge panel for the U.S. Court of Appeals for the Sixth Judicial Circuit voted 2-1 to stay implementation over concern that burden to state and federal government, as well as private parties and the public in general, from the implementation of the WOTUS rule outweighed any harm to the agencies in keeping the status quo.

The decision to “stay” the rule, granted by the U.S. Court of Appeals for the 6th Circuit in Cincinnati, comes a little more than month after a U.S. District Court judge issued a temporary injunction against implementation of the regulation. That injunction, however, applied only to the 13 states that brought the lawsuit against EPA and the Corps of Engineers in the North Dakota-based District Court.

In issuing the stay, the court indicated that the petitioners have “demonstrated a substantial possibility of success on the merits of their claims” which includes 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 previous Supreme Court rulings.

The court also said the “rulemaking process by which the distance limitations were adopted is facially suspect.” During the rulemaking process there was no proposed distance limitations for the terms of “adjacent waters” and “significant nexus” which the court said may provide support for the notion that the final rule “cannot be considered a ‘logical outgrowth’ of the rule proposed.”

“The WOTUS rule is vague and fails to let regulated parties know when their conduct violates the law,” said National Pork Producers president Dr. Ron Prestage, a veterinarian and pork producer from Camden, S.C.. “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.”

The American Farm Bureau Federation said it was pleased the Sixth Circuit recognizes that this rule has serious flaws and cannot go forward until the courts have had an opportunity to understand its effect on farmers, ranchers and landowners of all kinds.

“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,” said AFBF president Bob Stallman.

The National Cattlemen’s Beef Assn. also issued praises for the court’s decision. “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,” said NCBA president Philip Ellis. “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. In granting the stay, the majority of the Court sided with the states that the rule likely fails on both substantive and procedural grounds.”

Stallman noted the group is confident the courts will eventually strike down the ruling. “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,” Stallman said.

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