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WOTUS Conflict Hits Boiling Point
Friday, August 28, 2015 9:17AM CDT

By Todd Neeley
DTN Staff Reporter

OMAHA (DTN) -- Although the U.S. Environmental Protection Agency will begin enforcing the waters of the United States rule Friday in all but 13 states, a legal counsel for the American Farm Bureau Federation said she believes an injunction handed down by a federal judge in North Dakota Thursday means the EPA cannot enforce the rule in any state until the legal questions are resolved in court.

The U.S. District Court for the District of North Dakota granted an injunction for the 13 states filing the legal action, including Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.

On Thursday night, EPA issued a statement following the court ruling, claiming the rule will go into effect in the other 37 states not a party to the injunction.

"Under the order issued by the District Court of North Dakota, the parties that obtained the preliminary injunction are not subject to the new rule, and instead continue to be subject to the prior regulation," EPA said in a statement.

"In light of the order, EPA and the Army Corps of Engineers will continue to implement the prior regulation in the following states: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming. In all other respects, the rule is effective on Aug. 28. The agencies are evaluating these orders and considering next steps in the litigation."

Ellen Steen, general counsel for the American Farm Bureau Federation, one of many groups joining in legal action against the rule, said in a statement to DTN that AFBF believes the court's ruling means EPA cannot enforce the rule nationally.

"We think that is legally incorrect," she said. "But it isn't surprising the agency would take that position. They take many incorrect positions. And unfortunately for farmers and others whose activities may be regulated, it's impossible to know what courts will do (as the last two days have demonstrated). So, even with this injunction, the rule will create a great deal of uncertainty -- starting tomorrow (Friday)."

Don Parrish, senior director of regulatory affairs at the AFBF, said the North Dakota court's ruling indicates that if the court is asked to decide the legal questions raised by the 13 states, that a ruling ultimately could be favorable to opponents of the rule.

"I have just read the decision and I believe it is very, very strong," he said. "First -- the judge says the district court is the proper venue for this litigation... He explains clearly that to be a circuit court challenge, the rule would need to approve or promulgate either effluent limitations or other limitation and the rule plainly says it does not. The rule merely changes what constitutes waters of the United States.

"Second -- on the likelihood of success on the merits, the judge says slam dunk. The agencies violated the authority granted by Congress, failed to follow Supreme Court precedent, failed to comply with the Administrative Procedures Act requirements... and it was not a logical outgrowth of the proposed rule. And, lastly, the judges found that the rule did irreparable harm that was both imminent and irreparable. We expect EPA to appeal this injunction, so it will be tricky for some time on just how this will play out."

So now the Sixth Circuit Court of Appeals will have to decide whether the cases should have been brought to the court where the cases have been consolidated, Parrish said.

North Dakota Attorney General Wayne Stenehjem, who led the charge for the 13 states granted an injunction, said in a news release Thursday the ruling is just the beginning of what he expects will be a long court battle.

The court ruled "the states are likely to succeed on their claim because (1) it appears likely that the EPA has violated its Congressional grant of authority in its promulgation of the rule at issue and (2) it appears likely the EPA failed to comply with APA (Administrative Procedures Act) requirements when promulgating the rule."

Stenehjem said the ruling will maintain the status quo until the states' challenge can be fully decided by the courts.

"I am very pleased by today's ruling, which protects the state and its citizens from the serious harm presented by this unprecedented federal usurpation of the state's authority," he said. "This is a victory in the first skirmish, but it is only the first."

National Cattlemen's Beef Association President Philip Ellis said in a statement Friday that EPA can no longer "ignore" the concerns of farmers and ranchers.

"EPA's rule is nothing more than an attempt to put more land and water under federal jurisdiction, blatantly disregarding private property rights," he said. "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 1 million comments, the agency pushed forward to finalize the rule, a clear indication there was no intention of considering public comment or stakeholder input."

Ellis said EPA should put the rule on hold nationally until the legal questions are resolved.

"If the EPA actually wants to protect navigable waters as it claims, they will put this subjective and ambiguous rule to rest and start over with stakeholders at the table this time around," he said.

Rep. Lamar Smith, R-Texas, chairman of the House Science, Space, and Technology Committee, said in a statement that EPA should have considered the concerns of all stakeholders before finalizing the rule.

"Over the last year and a half, the EPA has continually ignored the legitimate concerns of states, the U.S. Army Corps of Engineers, farmers and landowners who will be impacted," he said.

"The irony of this rule is not lost on millions of Americans. While the agency has been frantically working to regulate the trickle of small streams in Americans' backyards, the EPA has failed at its core mission to protect the environment and is responsible for a toxic spill that polluted waterways impacting at least three different states. The Waters of the U.S. rule should be halted until EPA can clean up its act and get its priorities in order."

Texas Attorney General Ken Paxton said in a news release, "The Obama administration's ongoing and extreme attempts to reach into the personal lives and personal property of American citizens knows no bounds and must be stopped. The temporary injunction preventing the EPA from implementing WOTUS is a necessary and positive step toward preventing a dangerous and ill-conceived set of regulations from taking effect."

Janet Akers, president of the Missouri Cattlemen's Association, said in a statement Thursday she is "cautiously optimistic" following the court's decision.

"This administration's intentional land and water grab is a pervasive invasion of private property rights," she said. "This administration ignored concerns from the Army Corps of Engineers, farmers, ranchers, attorney generals from numerous states, small businesses and more. I am sure the administration considers today's decision a minor roadblock and that's why we must continue the fight against this rule."

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

Follow him on Twitter @ToddNeeleyDTN

(AG)


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