A new ruling issued today by a federal appeals court places a nationwide stay on the Environmental Protection Agency’s Clean Water Rule, better known as Waters of the U.S. (WOTUS).
The court agreed with petitioners that the treatment in the rule of tributaries, “adjacent waters,” and waters having a “significant nexus” to navigable waters is at odds with a previous Supreme Court ruling and that “it is far from clear that the new Rule’s distance limitations are harmonious with the instruction.”
In addition, the ruling called EPA’s rulemaking process “facially suspect” because it did not include any proposed distance limitations in its use of terms like “adjacent waters” and significant nexus.”
Agricultural organizations are supporting the ruling. “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,” said AFBF president Bob Stallman in a statement. “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.”
Senate Agriculture Committee Chairman Pat Roberts (R-KS), a long-time critic of WOTUS, also applauded the court ruling. “Due to the widespread confusion and frustration with the new regulations and pending litigation, this ruling should send a clear signal to the EPA that the rule should be scrapped altogether,” Roberts said. “The process was flawed from the beginning and I commend the court for this finding in particular: ‘Moreover, the rulemaking process by which the distance limitations were adopted is facially suspect.’”
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.