Injunction against federal water rule may expand

31 Aug 2015 | Author: | No comments yet »

Chaffetz Statement on WOTUS Injunction.

BISMARCK, N.D. (AP) — A federal judge in North Dakota is allowing arguments over the scope of his injunction blocking a new rule that would give the federal government jurisdiction over some smaller waterways. Since the rule was originally proposed previous year, the EPA has been working to clear up what it says are misconceptions, such as critics’ assertions that average backyard puddles would be regulated.The National Milk Producers Federation (NMPF) urged the Obama Administration to hold off on the national enforcement of the new Waters of the U.S. (WOTUS) regulation, in response to a court decision last week suspending the regulation in some states, but not others.

Despite the fact that Texas is not included in this lawsuit, Commissioner Miller sees the latest ruling as an important step in halting EPA’s burdensome overregulation and attempt to expand the Clean Water Act. The states’ challenge to the rule will still need to be briefed, argued, and decided by the court, but today’s injunction will maintain the status quo until the case is fully decided, the court held. Environmental Protection Agency (EPA) is proposing two new hazardous waste rules to strengthen environmental protection while reducing regulatory burden on businesses.

At issue are bodies of water as small as roadside ditches and ponds that, under the EPA’s expanded definition, would require builders, farmers, ranchers, manufacturers and others to comply with federal regulations and paperwork requirements before they can use that property. One of the proposed rules will protect waterways, including drinking and surface water, by preventing the flushing of hazardous waste pharmaceuticals and simplify the requirements for healthcare workers. After the court ruling, EPA announced it would not implement the rule in the 13 states that were part of the suit: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.

The judges in those decisions both ruled that the district court does not have jurisdiction to make a decision and the United States Court of Appeals for the 6th Circuit would have to decide. But North Dakota Attorney General Wayne Stenehjem, who filed the injunction request, says his reading of the ruling was that it applied to all 50 states. The final rule “left many of our concerns unresolved,” NMPF wrote today, although the organization had been hoping to work with EPA to address those concerns going forward. “The opinion by Judge Ralph Erickson brought forth many of the same concerns we relayed in our comments last November and should be taken seriously,” NMPF wrote. The conclusion states’ discretion is not affected is a bit odd in that the judge later concludes that the state plaintiffs satisfied all the criteria for a preliminary injunction, including irreparable harm caused by the rule.

The court’s decision will prevent the rule from taking effect until the states’ claims can be fully addressed and resolved, and it includes a preliminary determination that the states’ claims are likely to succeed, the states said in a news release. “Colorado has primary responsibility to protect and manage its own water resources, and it takes that responsibility seriously,” said Colorado Attorney General Cynthia H. The proposed rule will reduce the burden on healthcare workers and pharmacists working in healthcare facilities by creating a specific set of regulations for these facilities, including hospitals, clinics, and retail stores with pharmacies and reverse distributors that generate hazardous waste.

Clean water is central to healthy ecosystems, secure water supplies for human and animal consumption, and to the production of milk and other dairy products. Today the court agreed with Colorado and its fellow States that EPA likely overstepped its authority in trying to take control over state waters and, in doing so, poses a threat to state sovereignty.

The proposal will also reduce burden by providing greater flexibility in how facilities and employees manage their hazardous waste and make the regulations easier to understand. It also “arbitrarily establishes the distances from a navigable water that are subject to regulation”, roping in any damp patch within 4,000 feet-a number that, it appears, was plucked out of thin air. “When even the federal agencies responsible for this rule can’t agree on its constitutionality, it’s time for EPA to withdraw the rule and start this process over”, said Chip Bowling, president of the National Corn Growers Association and a farmer from Newburg, Maryland. Madeleine Foote, the group’s legislative representative, is in favor of the water ruling implementation and stated, “This is a bad decision for the 1 in 3 Americans who have already been waiting too long for these vital protections for their drinking water”. Read Assistant Administrator Mathy Stanislaus’ blog “Making Hazardous Waste Regulations Work for Today’s Marketplace” here:

He says the rule is “beneficial for Montana; it’s not adverse for anyone here.” He called the injunction and Montana’s participation in it “disappointing.” “We’re short on water. Second, Judge Erickson plays on an internecine dispute between EPA and the Army Corps of Engineers in an unusual way. (Some states are suing in other federal courts). “More than half of the states in this country have filed lawsuits against the EPA, and the latest court ruling gives me hope that we will be able to stop the EPA from further harming our agriculture industry and economy here in Texas”, Commissioner Miller said. Fish and fowl are suffering, the cities are suffering, agriculture is suffering, and (the stakeholders supporting the injunction) are wondering if we’ll still have enough opportunity to pollute,” Farling said. “I’m scratching my head as to why the Attorney General (of Montana) is opposing this.” Montana’s Attorney General Tim Fox joined in the lawsuit with the other 12 states because he sees it as a states’ rights issue, he said through an emailed statement.

As previously noted, EPA released its draft WOTUS rule before the work of the Science Advisory Board was complete, thus raising questions as to the rule’s scientific objectivity. First, Congress conferred original jurisdiction for challenges to EPA “effluent limitations or other limitations” and for permit decisions upon the Circuit Courts of Appeal.

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