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Ag groups cheer as appeals court puts hold on WOTUS regs

A panel of the 6th U.S. Circuit Court of Appeals in Cincinnati put the regulations on hold nationwide until the court decides whether it has jurisdiction to consider lawsuits against them.
Don Jenkins

Capital Press

Published on October 9, 2015 2:30PM

Last changed on October 9, 2015 4:44PM

AP Photo/Elaine Thompson, file
In this 2006 file photo, circular irrigated fields line the Columbia River on the Oregon-Washington border near Umatilla, Ore. An appeals court has put a nationwide hold on the Waters of the U.S. regulations that are under court challenge.

AP Photo/Elaine Thompson, file In this 2006 file photo, circular irrigated fields line the Columbia River on the Oregon-Washington border near Umatilla, Ore. An appeals court has put a nationwide hold on the Waters of the U.S. regulations that are under court challenge.

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Farm groups hailed a federal court ruling Friday that at least temporarily blocks the new Waters of the United States rule from taking effect in all 50 states.

“From agriculture’s standpoint, it’s very favorable,” said attorney Toni Meacham, executive director of the Washington Agriculture Legal Foundation.

The Ohio-based 6th U.S. Circuit Court of Appeals granted the temporary stay, pending a hearing on claims the new rule represents on unlawful power grab by the U.S. Environmental Protection Agency and the Army Corps of Engineers.

A federal district judge in North Dakota in August blocked the rule in 13 states, including Idaho. The judge declined to extend the ruling to other states, pending a review by the 6th Circuit. Meanwhile, the EPA said the rule was in effect in 37 states, including Washington, Oregon and California.

Washington State Dairy Federation policy director Jay Gordon said the 6th Circuit was right to keep the country under one rule.

“You can’t have 13 states where it doesn’t apply and 37 where it does,” he said. “We are the United States of America, not parceled up. It made perfect sense to me.”

The 6th Circuit, in its ruling, said a “whirlwind of confusion” surrounds the law. Gordon said meetings with regulators to try to understand the new rule has left him frustrated. “You always leave the meetings thinking, ‘I don’t think I got my questions answered.’”

Some 18 states sought the injunction in the 6th Circuit. Seven states, including Washington and Oregon, intervened and asked the court to deny the motion. Several environmental groups also asked the court to let the new rule stand.

The 18 opposing states argued that the EPA’s new definition of “waters of the United States” overextends the reach of the Clean Water Act and spoils the federal and state collaboration in protecting waters.

States that support the new rule argued they will be harmed if upriver states were lax about protecting waters.

In the 2-1 ruling, the court said the opponents have raised enough objections to suggest they might have a winning case. Judge David McKeague said granting the stay “honors the policy of cooperation” between states and the federal government on the Clean Water Act.

“The sheer breadth of the ripple effects caused by the rule’s definitional changes counsels strongly in favor of maintaining the status quo for the time being,” McKeague wrote.

“A stay allows for a more deliberate determination whether this exercise of executive power … is proper under the dictates of federal law,” he wrote. “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.”

Lawsuits have been filed against the new rule in federal courts across the country. The Washington Cattlemen’s Association is the lead plaintiff in a suit pending in the U.S. District Court for Minnesota. The association’s executive vice president, Jack Field, called the 6th Circuit ruling “wonderful news,” but said the rule’s opponents should continue lobbying Congress to repeal it.

“Folks should not let off on the phone calls and emails to legislators, letting them know how important it is we kill the rule and start over,” he said.

The Washington Farm Bureau made the same appeal in an email to its members Friday afternoon.

“Today’s action is only a temporary reprieve, and getting to a final court ruling will take years, at great cost to all involved,” the email stated.

The Judicial Panel on Multi-District Litigation referred the case to the 6th Circuit for initial review. McKeague and Judge Richard Griffin said they were satisfied the issue was properly before them. The dissenting judge, Damon Keith, said the court should first rule it has exclusive jurisdiction before issuing a stay.

The court will make a ruling on its jurisdiction in a “matter of weeks,” McKeague wrote.

Meacham said Friday’s ruling doesn’t foreshadow a eventual victory for the rule opponents. “We believe we will prevail in the long run because we’re right,” she said.



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