Courts prove mess of WOTUS

Courts prove mess of WOTUS

Mixed decision as only one court rules for an injunction to stop EPA implementation of WOTUS.

Today marks the implementation of the Environmental Protection Agency’s waters of the U.S. rule, or at least for everyone except those who live in 13 states who successfully got a judge to stop the rule from going into effect. Two other judges denied the injunction request, showing continued confusion in the ongoing saga that has followed the rule since its inception last spring.

Administrator McCarthy looks at an upland pond, which helps with conservation efforts and is exempt from EPA’s proposal because it is a part of normal farming practices.

Thursday a North Dakota District Judge Ralph Erickson said in his opinion North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming and two state agencies in New Mexico who filed the lawsuit "have demonstrated that they will face irreparable harm" if the rule were to go into effect Aug. 28.

Erickson agreed that the rule should be delayed during the ongoing litigation, stating “the states are likely to succeed on their claim because (1) it appears likely that the EPA has violated its Congressional grant of authority in its promulgation of the Rule at issue and (2) it appears likely the EPA failed to comply with APA [Administrative Act Procedures] requirements when promulgating the Rule.”

The judge also said he took into account memos released by the Army Corps which questioned the legal standing of the final rules EPA promulgated.

In total 10 different lawsuits, including attorneys general from 29 states, challenge the agency’s rule based on usurping states’ rights as well as private property rights.  

EPA said those states that obtained the preliminary injunction are not subject to the new rule, and instead continue to be subject to the prior regulation.  “In all other respects, the rule is effective on August 28,” EPA said in a statement.

United States District Courts in Georgia and West Virginia agreed with the EPA and the Army Corps of Engineers that legal challenges to the rule could only be brought in the United States Court of Appeals for the 6th Circuit where the case had been consolidated and therefore denied the requests for preliminary injunction.

So those farmers in all the other states will proceed with the EPA rule as it is written. Ken Kopocius, head of EPA’s Office of Water, continued to try to allay concerns farmers have with the rules, saying no changes will be experienced for farmers on permitting requirements for agricultural land.

You can expect that this mixed ruling will heat up the calls for the Senate to advance a legislative fix to EPA’s Clean Water Rule.

Many agricultural organizations are calling for support of S.B. 1140 which requires the administration go back to the drawing board in developing a new rule with more input from stakeholders. The bill was introduced in April and passed out of its respective committee in June – the final step before consideration on the Senate floor. The full House already passed a similar bill.

Sen. Heidi Heitkamp, D-N.D., one of the bill sponsors, said she’ll keep pushing Congress to provide a more permanent solution. “We can work together toward commonsense regulations that don’t place overly cumbersome burdens on the shoulders of farmers so they can keep producing the crops that feed the nation – and we can do it by passing our bill and sending this unworkable rule back to the EPA,” she said.

Missouri Cattlemen’s Assn. president Janet Akers said the North Dakota court decision is reason to be “cautiously optimistic” but also said the administration likely considers the decisions “a minor roadblock” and renewed calls to continue to fight against this rule.

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