Federal court suspends Obama water rule that farmers and N.C. regulators call illegal

Opponents say farm ditches are at risk of being regulated under new EPA regulations. Image credit: Flickr via conespider.

RALEIGH – A federal court has put the Obama administration’s Waters of the United States (WOTUS) rule on hold for the entire country, saying the states that have challenged the rule have a good chance of winning and that the process used to create the rule was “suspect.” The rule, which had already been suspended in 13 states, redefines what land and water features are subject to federal regulation under the Clean Water Act and has become the subject of a fight between farmers and environmentalists.

In the opinion, issued today by the U.S. Sixth Circuit Court of Appeals in Cincinnati, the judges said the states that challenged the rule have shown “a substantial possibility of success on the merits of their claims” and have reinstated the rules in place before the new rule was issued. The judges also said that the “rulemaking process by which the distance limitations were adopted is facially suspect,” and that there is no “indication that the integrity of the nation’s waters will suffer imminent injury if the new scheme is not immediately implemented and enforced.”

The Sixth Circuit Court of Appeals covers Kentucky, Michigan, Ohio and Tennessee, but the ruling will affect the entire country. One judge on the three-judge panel declined to join the majority opinion, offering a technical dissent. The dissenting judge did not opine on the merits of the case, saying only that the court did not have the authority to issue the stay.

The EPA published the new rule in June, redefining what ditches, drainageways, wetlands, streams and other features are subject to federal regulation under the Clean Water Act. The redefinition resulted in a significant expansion of federal authority and control over local water and land use management.

Farmers and rural advocates nationwide have loudly opposed the rules, most notably through the U.S. Farm Bureau’s “Ditch the Rule” campaign. The EPA has responded with a public relations campaign of its own entitled “Ditch the Myth,” which aims to convince Americans that federal intervention is needed to protect the nation’s waterways and that the rule is not the overreach many in the agricultural community worry it is.

A federal judge in North Dakota blocked the EPA from enforcing the new rule in August, just one day before it was set to take effect, citing concerns about its legality under the Clean Water Act. But shortly after the injunction was announced, the EPA issued a statement saying the agency would continue to apply the new WOTUS rule in all parts of the country except those in the federal circuit that includes North Dakota and nearby states.

Like the ruling Friday, the North Dakota judge ruled that the Obama administration likely overstepped its legal authority in issuing the rule and likely failed to comply with requirements when promulgating the rule.

N.C. Attorney General Roy Cooper (D)

N.C. Attorney General Roy Cooper (D)

North Carolina regulators agreed that the federal government was going beyond what Congress set out in the Clean Water Act and have challenged the rule. In August, N.C. Department of Environmental Quality Secretary Donald R. van der Vaart sent a letter to N.C. Attorney General Roy Cooper requesting his office support the agency’s challenge.

“The future of North Carolina’s waters must continue to stay in North Carolina’s hands and not in Washington D.C.,” van der Vaart wrote in the letter. “Our state has a much better record of protecting and cleaning our waters than the federal government.”

The WOTUS rules would negatively affect farmland in Eastern North Carolina, according to van der Vaart. “Large swaths of farmland could be swept into federal jurisdiction,” van der Vaart wrote. “Many more landscape features will become federally regulated under the proposed rule, resulting in reduced land values, reductions in productive land and increased costs for land use.”

Cooper has yet to respond to the request, according to DEQ officials.

Environmentalists have praised the Obama administration for issuing the rule. The Sierra Club said the “new rule will finally restore protections, as originally intended, to almost all of the nation’s fresh waters,” and that polluters had “exploited the uncertainty” about what waters are subject to regulations.

But Anne Coan, director of environmental affairs for the N.C. Farm Bureau Federation, has said that the rule adds an entirely new level of uncertainty to what wetlands and streams can be regulated.

“Now there are lands that will be automatically jurisdictional that include things like ephemeral streams – water is only there for a couple of hours after it rains – and they have indicators that [experts] can say ‘well this is a stream,’ but the average person is not going to know,” said Coan, who has been researching environmental issues for the N.C. Farm Bureau for more than 36 years. “That is going to put a chill on what people feel they are able to do with their property.”