Courts Block Controversial EPA Water Policy

A federal court dealt a major blow to the government’s water policy ambitions last week by ordering the agency to halt implementation of a controversial new regulation, the centerpiece of its clean water efforts during the Obama administration.

“A lower court had already blocked the rule in 13 states, but the U.S. Court of Appeals for the 6th Circuit issued a nationwide stay, undercutting the EPA’s push to try to carry out the rule in the rest of the country,” The Washington Times reported.

“In a 2-1 decision, the majority said the process the EPA used to write the new rules was ‘facially suspect’ because the agency never asked the public for comments on the far-reaching limits it ended up imposing,” the report said.

The backdrop: The EPA had argued that the rule is necessary to protect waterways and because Supreme Court decisions make it unclear what the agency may regulate under the Clean Water Act. Political conservatives and the agriculture industry opposed the regulation.

“The EPA always believed its jurisdiction stretched beyond traditional navigable waters, like rivers and seas, to the smaller bodies of water and wetlands that can affect them, but it didn’t have a strong legal basis to prove it. The updated definition clarifies this authority, but it has left ranchers and industry officials nervous about whether they will need to check with the government before using their own land,” The Texas Tribune explained.

The court explained the basis for its order:

A stay allows for a more deliberate determination whether this exercise of Executive power, enabled by Congress and explicated by the Supreme Court, is proper under the dictates of federal law. A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing. A stay honors the policy of cooperative federalism that informs the Clean Water Act and must attend the shared responsibility for safeguarding the nation’s waters.

The action will apply to every state in the country, according to the order:

Accordingly, on due review of the relevant considerations in light of the briefs filed by petitioners, respondents and intervenors, and in the exercise of our discretion, we GRANT petitioners’ motion for stay. The Clean Water Rule is hereby STAYED, nationwide, pending further order of the court.

The EPA responded to the news, per The Texas Tribune:

"We look forward to litigating the merits of the Clean Water Rule," the EPA said in its own statement, which noted that the appeals court in its stay "acknowledges that clarification of the Clean Water Act is needed and that 'agencies conscientiously endeavored, within their technical expertise and experience, and based on reliable peer-reviewed science, to promulgate new standards to protect water quality that conform to the Supreme Court’s guidance.'"

"The Clean Water Rule was developed by the agencies to respond to an urgent need to improve and simplify the process for identifying waters that are and are not protected under the Clean Water Act, and is based on the latest science and the law," the statement continued.

To keep up with Clean Water Rule developments, visit Water Online’s Source Water Solutions Center.

http://www.wateronline.com/doc/courts-block-controversial-epa-water-policy-0001