Waters of U.S. rule blocked by federal judge

Waters of U.S. rule blocked by federal judge

Waters of the U.S. rule blocked in 13 states by federal judge. Opponents of rule applaud judge. WOTUS derided by agriculture groups as severe government overreach.

The EPA and Army Corps of Engineers plan to implement the controversial Waters of the U.S. (WOTUS) rule has been put on ice by North Dakota Judge Ralph Erickson. Late Thursday (Aug. 27), Erickson agreed to a preliminary injunction sought by 13 states suing to block the WOTUS rule, saying it is “exceptionally expansive.”

The judge’s ruling came less than a day prior to WOTUS taking effect.

The 13 states that will be spared the WOTUS rule, at least temporarily, include: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.

Critics of the EPA rule contend it would extend federal control, under the Clean Water Act, over navigable waters to include things like field-side ditches. The EPA’s original proposal — since amended to ensure most existing agricultural exemptions from the Clean Water Act will be preserved — received over a million comments from the public. Farmers have been among the most vociferous opponents of the rule, many calling it a gross overreach to expand government oversight.

“This is now a final rule scheduled to go into effect around the end (of August),” said Reece Langley, National Cotton Council vice president, Washington Operations, at the mid-August ACP-Cotton Foundation joint meeting in New Orleans. “There have been multiple lawsuits filed in states trying to prevent EPA from moving forward.

“It’s possible, that on the court side of things, we could see an injunction issued to prevent EPA from implementing the rule.

“There are some things pending in Congress. There’s legislation that would require the EPA and Corps of Engineers to completely pull the rule back and start over. There are also policy riders that have been added to some appropriations bills that would prevent EPA from being able to enforce or implement the rule. None of that has gotten through the complete legislative process and even if it did it’s unlikely it would be signed into law by President Obama.”

Earlier this spring, House Resolution 1732 — which would quash the EPA rule — passed the House on a 261-155 vote and was sent to the Senate. If the legislation passes the Senate, President Obama says he will veto it. The Senate is yet to take up the legislation.

In late May, when the final WOTUS rule was released, Arkansas Rep. Rick Crawford, who has repeatedly expressed displeasure with the EPA’s approach, said the rule’s language remained opaque. “Despite an overwhelming number of public comments requesting a significant modification or complete revocation of this rule, the administration has decided to ignore both the opinion of Congress and the American people by pushing forward with this large expansion of federal authority for small and seasonal bodies of water already regulated at the state level. The ambiguous wording of the WOTUS rule could subject landowners, farmers, and ranchers to jurisdictional challenges and unprecedented levels of compliance costs.”


Among agriculture groups responding to Judge Erickson’s ruling:

  • Arkansas Farm Bureau.

“The judge clearly made the right call,” said Randy Veach, Arkansas Farm Bureau President, a cotton, soybean and corn farmer from Manila (Mississippi County). “I’ve never met the man, but I want to shake his hand. He obviously sees the world with clear eyes and that should be applauded.

“This has not been a debate about how water should be regulated. It has been an effort to see just how far the U.S. citizens would allow a government agency to get into their business. Hopefully, this injunction is the first step toward total dismissal of EPA’s efforts to supersede local and state authority.”

  • National Corn Growers Association.

“We support the judge’s decision in North Dakota, which should give the courts and the public more time to figure out how to proceed with WOTUS,” said Chip Bowling, NCGA president. “The Army Corps of Engineers has stated this rule is not based on science or law and is unlikely to withstand a legal challenge. When even the federal agencies responsible for this rule can’t agree on its constitutionality, it’s time for EPA to withdraw the rule and start this process over.

“It is EPA’s view that this injunction only applies to the 13 states that filed the request. We believe EPA is incorrect. It certainly wouldn’t be the first time. Whether the injunction applies to 13 states or all 50, the WOTUS rule will have serious consequences for every farmer and rancher in America. It must not be allowed to stand.”

  • National Cattlemen’s Beef Association.

“EPA’s rule is nothing more than an attempt to put more land and water under federal jurisdiction, blatantly disregarding private property rights,” said Philip Ellis, NCBA president. “Over the last year and a half, the agency continually ignored the concerns of the U.S. Army Corps of Engineers, farmers, ranchers and landowners across the country, to the point of calling the concerns of cattle producers ludicrous. In fact, only six months after receiving over one-million comments the agency pushed forward to finalize the rule, a clear indication there was no intention of considering public comment or stakeholder input.”

  • National Association of Wheat Growers.

“This decision provides breathing room for grower concerns to be discussed in the courts without enforcement of the EPA’s draconian new rule hanging over the heads of our nation’s family farmers,” said Brett Blankenship, NAWG president.

“We will watch closely the ongoing lawsuits and call on Congress to take action to address the regulation in a comprehensive manner.  It is time for action to send the regulation back to the EPA and the Army Corps of Engineers to be rewritten.  Wheat growers support clean water and know the importance of protecting the natural resources that sustain our farming operations, feed our families and feed a growing world population.  The Waters of the U.S. regulation expands the reach of the Clean Water act and falls short in providing clarity to growers."

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