In a split ruling last month, a Cincinnati-based federal appeals court temporarily blocked an EPA rule that would have given the agency jurisdiction over periodic wetlands, tributaries, farm ponds, and drainage ditches under navigable water legislation.
The appellate ruling involved a separate multidistrict case brought by 18 states.
Arguing that the rule violated state sovereignty, North Dakota, where U.S. District Court Chief Judge Ralph Erickson had previously issued a temporary injunction against the rule, led 12 states in an earlier legal suit.
That North Dakota-led lawsuit was but one of 10 filed by 29 states and business interests since the EPA finalized the rule on May 27.
The appellate court’s two-judge majority found that while the challengers demonstrated “a substantial possibility of winning the case,” the ruling doesn’t resolve the legal merits of the EPA’s new water rules. Rather, it puts them on hold while the case continues.
As one of those challengers, Oklahoma Attorney General Scott Pruitt told The Wall Street Journal, the court order “is certainly a win for Oklahoma, but the legal fight moves forward as we work diligently to roll back this unlawful rule.”
Pruitt added that the regulation “is a devastating blow to private property rights and is an unlawful power grab by the EPA.”
Describing the Obama Administration’s interpretation of the EPA’s authority under the Clean Water Act as exceptionally expansive, Judge Erickson wrote, “Immediately upon the rule taking effect, the rule will irreparably diminish the state’s power over their waters.”
It would even have required farmers and other land owners a federal permit to “pollute” such waters (or occasional rain waters), or could restrict access altogether. Major waterways such as most rivers and lakes which the EPA already regulates wouldn’t be affected.
The Wall Street Journal reports the EPA saying that it approves tens of thousands of permits each year, and that farming activity won’t need them based upon an existing exemption.
If so, the EPA should explain to Andy Johnson why he got threatened in January 2014 with a $75,000 per day — yup, per day — EPA fine for creating a watering hole for his cattle along the Six Mile Creek that crosses his rural Wyoming property.
Although Johnson had received a state permit to build a dam, he had failed to get a separate federal permit required by the Army Corps of Engineers because the creek connects with the Black Forks River, then on to the Green River, which the EPA had designated under the Clean Water Act of 1972 as a “navigable, interstate water of the United States.”
Such “buffer” area influences could be aggregated over thousands of square miles. Any water with a “nexus” conceivably connecting with navigable river would be subject to EPA regulatory authority.
Or as Texas Attorney General Ken Paxton concludes, the EPA definition of “navigable waters” will “include almost any piece of land that gets wet and puddles.”
A defiant Obama EPA has made it clear that it intends to enforce its regulation as planned. It argues that Erickson’s ruling applies only to the 13 states winning the injunction: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.
And, of course, the injunction can ultimately be overturned.
Rep. Lamar Smith (R, TX), who chairs the House Science, Space, and Technology Committee, points out a fundamental “irony of this rule” stating that “while the agency has been working frantically to regulate the trickle of small streams in Americans’ back yards, 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.”
Smith was referring to a 3-million-gallon August 5th wastewater spill in Colorado caused by EPA contractors which turned the Animas River mustard yellow with poisonous heavy metal sludge.
The blowout was caused by a crew exploring possible cleanup operations for an abandoned Gold King Mine Superfund site.
But wait a minute — what about a second toxic Colorado wastewater spill caused by a separate EPA contractor at the Standard Mine near Crested Butte on October 6th?
It happened when a vacuum truck siphon dropped into the sediment layer near the bottom of a treatment pond.
Here’s a thought. Before authorizing the EPA to control drainage ditches and potential puddles on private land premised upon the Clean Water Act, why not require that the agency control its own act?
Let’s see how the courts finally navigate through those troubled waters.