Wednesday, 26 September, 2018

Federal court reinstates clean water rule delayed by Trump administration

Planning Commission  Flickr A federal judge has revived the Obama-era Waters of the U.S. rule in 26 states. Montgomery County Planning Commission Flickr
Sandra Phillips | 19 August, 2018, 23:19

The Trump administration has attempted to delay an Obama administration rule known as the Waters of the us, which aimed to clarify jurisdiction of the clean water act.

In the meantime, the Trump Administration began working toward the eventual repeal of the WOTUS rule, and its replacement with a less expansive definition that would constrain federal regulatory authority.

"We would like to keep the clean water rule", Ward said.

The delay rule was created to provide clarity and maintain regulatory certainty and stability while the administration reconsiders the 2015 WOTUS rule and develops new regulations to provide both clean water and clear rules.

"The Suspension Rule typified this administration's disregard for the environment, the rule of law, and public input", said Steven Goldstein, legal fellow at Defenders of Wildlife.

In a motion for summary judgment brought by a coalition of conservation groups, Judge David C. Norton of the U.S. District Court for the District of SC in Charleston found that the federal government failed to comply with the requirements of the Administrative Procedure Act (APA) in implementing the Suspension Rule, a two-year delay of the CWR enacted in February by the Environmental Protection Agency (EPA) and Army Corps of Engineers. On the same day that the suspension rule went into effect, environmental plaintiffs filed suit against the manner in which the suspension rule was enacted, saying it violated the Administrative Procedure Act (APA) because there was an insufficient public notice and comment period.

At issue is the federal regulatory definition of "waters of the United States", which determines the scope of federal regulatory jurisdiction under the Clean Water Act (CWA). Under the proposal, the EPA and the Army Corps would enforce the water regulations under the older, limited definition of waterways, which included primarily large bodies of water like rivers.

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The injunction applies and the rule is now law in 26 states, but the ruling does not apply to 24 states where other legal challenges are pending. "The court finds that the government failed to comply with these requirements in implementing the Suspension Rule".

Because of court actions in other cases, the 2015 rule remains on hold in Georgia, Alabama, Florida, Indiana, Kansas, North Carolina, South Carolina, Utah, West Virginia, Wisconsin, Kentucky, South Dakota, Missouri, Alaska, North Dakota, New Mexico, Idaho, Arizona, Nebraska, Montana, Arkansas, Nevada, Colorado and Wyoming.

Agricultural groups said the ruling reinforces why the Administration needs to take quick actions to limit the impact of this ruling.

These regulations will increase business uncertainty and farming costs. In a statement Yager said the ruling underscores the urgent need to finalize the repeal of the 2015 rule. "The South Carolina court has effectively brought WOTUS back from the dead in 26 states, creating a zombie version of the 2015 rule that threatens the rights of farmers and ranchers across the country".

"Because EPA has not engaged in reasoned decision-making, its promulgation of the delay rule is arbitrary and capricious", the appeals court said in vacating the delay rule.

The American Farm Bureau Federation has a completely different take, calling the ruling "misguided" and the WOTUS rule itself "overbroad, vague and illegal".

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