A federal court today ordered the EPA to stop enforcement nationwide of the Waters of the United States rule. Citing a substantial possibility of success on the merits of their claims and casting suspicion on the rulemaking process, the Sixth Judicial Circuit Court of Appeals today ordered that the EPA and Army Corps’ “Waters of the United States” rule be stayed nationwide until the Court can determine jurisdiction over the many pending lawsuits.
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. A copy of the order can be found online.
Get reactions from ag groups below.
From the National Cattlemen’s Beef Association
Scott Yager, NCBA environmental counsel, discusses the Sixth Judicial Circuit’s stay of WOTUS Implementation: Beltway Beef – Scott Yager
Philip Ellis, National Cattlemen’s Beef Association president said this action will prevent implementation of the WOTUS rule.
“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 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.”
From the American Farm Bureau Federation
Bob Stallman, president of the American Farm Bureau issued the following statement:
“A federal court today ordered the EPA to stop enforcement nationwide of the Waters of the United States rule. The American Farm Bureau Federation is 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.
“We are confident that the courts will strike down this rule. 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.”
From the National Pork Producers Council
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” (WOTUS) rule until further order of the court. The National Pork Producers Council hailed the decision.
“This is a huge victory for farmers,” said NPPC President Dr. 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 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.
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 thirteen 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 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 NPPC objected at the outset, are “facially suspect.” (Click here to read the court’s decision.)
“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.”