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Thanking WOTUS Opponents

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“The Sixth Circuit’s order to suspend nationwide the implementation of the Obama administration’s final WOTUS [Waters of the U.S.] rule is a victory for all states, local governments, farmers, ranchers, and landowners,” says U.S. Sen. Jim Inhofe, R, Okla.

Indeed, all landowners have many entities to thank, including state Attorneys General.

Readers should know that the states of New York, Connecticut, Hawaii, Massachusetts, Oregon, Vermont, Washington, and the District of Columbia all supported EPA and the Obama administration in a radical attempt to rewrite the Clean Water Act. There are 18 petitioner states who have opposed EPA regarding the definition of what is a water of the United States.

It is surprising EPA continues its misdirected effort to expand its jurisdiction over virtually every water body in the United States. In February, 2015, EPA and the U.S. Army Corps of Engineers admitted to Congress that the proposed WOTUS rule was flawed and ambiguous. Instead of stopping and correcting problems, EPA simply made the rule broader, which I have written about previously.

The 6th Circuit Court of Appeals issued a legal stay to stop EPA from proceeding any further on its attempt to rewrite the CWA. The Court looked at four factors. It found the Attorneys General had demonstrated a substantial possibility of success on the merits of at least two claims. The Court ruled that the treatment of the terms “tributaries,” “adjacent waters,” and “waters having a significant nexus to navigable waters” did not square with a previous U.S. Supreme Court ruling.

The Court was also concerned that EPA’s rulemaking, which set specific distance limitations in the rulemaking process, were legally suspect; as a result, the Court said, “We have no doubt of our authority…to make orders to preserve the existing conditions and the subject of the petitions pending our receipt and careful consideration of briefing on the jurisdictional question.”

In a few weeks, the Attorneys General and EPA will submit briefs on whether the Court of Appeals should review EPA’s entire WOTUS rule or should it be reviewed by a U.S. District Court.

There is some disturbing language in the opinion where the Court says, “There is no compelling showing that any of the petitioners [Attorneys General of states] will suffer immediate irreparable harm – in the form of interference with state sovereignty, or in unrecoverable expenditure of resources…” The Court, however, also said “…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.”

Regarding the first conclusion of the three-judge panel, I would respectfully disagree. States, including North Dakota, submitted affidavits showing immediate impacts on projects and it would appear the Court did not adequately consider those affidavits or did not believe them.

Strangely, the Court goes on to say it is greatly concerned in terms of balancing the harms “…potentially visited nationwide on governmental bodies, state and federal, as well as private parties – and the impact on the public in general, implicated by [WOTUS’] effective redrawing of jurisdictional lines over certain of the nation’s waters.” So the Court seems to understand the enormous impact EPA’s WOTUS rule would have on the entire country.

What the Court has done is to stay the effect of the rule temporarily pending a further order of the Court. While this is sufficient to be thankful for, it certainly does not end the battle, but for Thanksgiving, farmers and ranchers should take this decision as a positive step in the right direction and be thankful that there are still courts who attempt to follow the law.

(This article first ran in Farm Futures on November 24, 2015)
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