In a significant victory for the agricultural and business sectors, a federal appellate court this morning suspended nationwide implementation of the “Waters of the United States” rule until further order of the court. The National Pork Producers Council hailed the decision.
“This is a huge victory for farmers,” says NPPC 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 rule, which took effect Aug. 28, was proposed in April 2014 by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers to clarify the agencies’ authority under the Clean Water Act over various waters. That jurisdiction – based on several U.S. Supreme Court decisions – had included “navigable” waters and waters with a significant hydrologic connection to navigable waters. The WOTUS regulation broadened that to include, among other water bodies, upstream waters and intermittent and ephemeral streams such as the kind farmers use for drainage and irrigation. It also encompasses lands adjacent to such waters.
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 a 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 the EPA and the Corps of Engineers in the North Dakota-based District Court.
But, said the Court of Appeals, “In light of the disparate rulings … 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.”
In reaching its decision, the court found that there’s a substantial likelihood that the EPA’s WOTUS rule fails to comply with the Supreme Court’s instructions in previous Clean Water Act cases and that the agency’s actions in the rulemaking process, to which the NPPC objected at the outset, are “facially suspect.”
“The WOTUS rule is vague and fails to let regulated parties know when their conduct violates the law,” Prestage says. “We all want clean water, but this regulation is just a 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.”