A federal appeals court on Friday morning said that the U.S. government could not begin implementing the controversial “Waters of the U.S.” rule that governs what waterways are subject to federal Clean Water Act permits and which waterways are not.
“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,” Phillip Ellis, president of the National Cattlemen’s Beef Association, said in response to the decision by the U.S. Court of Appeals for the 6th Circuit. “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.”
The rule has been highly unpopular with the farming and ranching community, which views it as an example of government overreach by the Environmental Protection Agency and the U.S. Army Corps of Engineers.
The implementation of the rule has also been extremely confusing to farmers and ranchers. In September, a federal court in North Dakota issued an injunction against the rule in 13 states just as it was ready to go into effect.
That decision applies to the 13 states involved in that particular case, and many expected it to cover the other 37 states that have lawsuits pending on the very same regulation.
But the EPA said in August the hotly debated rule would go into effect on Friday, Aug. 28, as planned everywhere but those 13 states.
“This is highly unusual,” Oklahoma Attorney General Scott Pruitt responded at the time. “Historically when an agency at federal level has been enjoined or prevented from doing something … the agency will apply that injunction … to itself across the country.”
An AgWeb online poll done in September found that 53% of farmers were holding back on water-related projects due to the uncertainty surrounding the WOTUS regulation situation.
Today’s ruling applies across all 50 states, leaving EPA and the Army Corps of Engineers legally unable to implement the rule until the federal courts determine just where the many pending WOTUS cases will be consolidated and eventually decided.
In a statement released Friday, the two federal agencies acknowledged the new legal developments regarding the regulation, which was renamed the "Clean Water Rule" when the revised version was released in spring 2015. "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," the statement said, adding: "The Clean Water Rule was developed by the agencies 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 Clean Water Rule represents the agencies’ continuing commitment to protecting and restoring the nation’s water resources that are vital for our health, environment, and economy. 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."
The news of the injunction, however, drew cheers from many in the agricultural community and farm state elected officials.
“I applaud the court for halting the rule in all states to allow justice, and some might say commonsense, to play out,” said U.S. Senator Pat Roberts (R-Kansas), who chairs the Senate Agriculture Committee. “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. Farmers, ranchers and other stakeholders were ignored in the comment period during consideration of the proposed rule. The EPA stacked the deck against them. The process was flawed from the beginning.”
His colleague Ben Sasse (R-Neb.) agreed.
"WOTUS is now on borrowed time," Sasse said. "This ruling is a victory for common-sense and the rule of law. The EPA isn’t a super-legislature and this ruling brings us one step closer to having the American people—not unelected bureaucrats—setting important agriculture and conservation policy. Like most Nebraskans, I’m grateful for the court’s decision and committed to seeing this fight through.”
What do you think of today's ruling? What projects are you putting on hold while you wait for clarity on these federal water quality regulations? Let us know in the comments.