WOTUS Delayed Nationally

By Todd Neeley
DTN Staff Reporter

OMAHA (DTN) — The waters of the United States rule will be put on hold nationally after the U.S. Sixth Circuit Court of Appeals ruled Friday it must first resolve pending legal questions, including whether the court has jurisdiction to hear multiple lawsuits against the federal government on the rule.

In a 2-1 ruling, the three-judge panel determined the court has no other choice but to issue a stay, as the court raised questions about the scientific justification for how key parts of the rule were created.

Some 30 states have sued the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers to stop the rule’s enforcement. A federal court in North Dakota recently issued an injunction preventing the rule’s implementation in 13 states.

In the majority opinion, the Sixth Circuit Court said it believes the plaintiffs have demonstrated their legal claims could be successful.

Exactly how long the stay will last is not known. The court said in its order it may render a decision on jurisdictional questions "in a matter of weeks."

The states and other plaintiffs have argued the federal government arbitrarily set distance limitations when determining adjacent waters, tributaries and "significant nexus" in the final rule, providing no basis in science. Internal memos from the Army Corps of Engineers shows Corps personnel raised concerns about those distances being legally defensible in the weeks before the final rule was issued in August.

"Meanwhile, we conclude that petitioners have demonstrated a substantial possibility of success on the merits of their claims," the court said in its order. "… Moreover, the rulemaking process by which the distance limitations were adopted is facially suspect. Petitioners contend the proposed rule that was published, on which interested persons were invited to comment, did not include any proposed distance limitations in its use of terms like ‘adjacent waters’ and ‘significant nexus.’ Consequently, petitioners contend, the final rule cannot be considered a ‘logical outgrowth’ of the rule proposed, as required to satisfy the notice-and-comment requirements of the APA (Administrative Procedures Act).

The court said EPA and the Corps of Engineers failed to identify "specific scientific support substantiating the reasonableness of the bright-line standards they ultimately chose."

The court said "considering the pervasive nationwide impact of the new rule on state and federal regulation of the nation’s waters, and the still open question whether, under the Clean Water Act, this litigation is properly pursued in this court or in the district courts, we conclude that petitioners have acted without undue delay and that the status quo at issue is the pre-rule regime of federal-state collaboration that has been in place for several years."

While the order to stay the rule is a victory for the states, agriculture, other interest groups, the court said "there is no compelling showing that any of the petitioners will suffer immediate irreparable harm in the form of interference with state sovereignty, or in unrecoverable expenditure of resources as they endeavor to comply with the new regime — if a stay is not issued pending determination of this court’s jurisdiction.

"But neither is there any indication that the integrity of the nation’s waters will suffer imminent injury if the new scheme is not immediately implemented and enforced."

American Farm Bureau Federation President Bob Stallman said in a statement Friday the plaintiffs would ultimately win in court. Despite the court’s decision, Stallman called on Congress to pass legislation to change the 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," he said.

"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."

Philip Ellis, National Cattlemen’s Beef Association president, said the court’s action was good news for farmers and ranchers.

"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," he said in a statement. "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."

Sen. Jim Inhofe, R-Okla., and chairman of the U.S. Senate Environment and Public Works Committee, said in a statement Friday he believes the court ultimately will strike down the rule.

"The EPA and Army Corps admitted in February before Congress that the proposed rule was flawed and ambiguous, yet the agencies continued forward and finalized the rule in May," he said.

"Instead of fixing the overreach, EPA made it broader. In issuing the stay, the court determined that ‘petitioners have demonstrated a substantial possibility of success on the merits of their claims.’ This means that the court is likely to overturn the rule."

Todd Neeley can be reached at todd.neeley@dtn.com

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