In a South Carolina courtroom, a federal judge of the U.S. District Court issued an injunction against the Trump administration by lifting a stay on a rule imposed during the Obama era rule that expanded federal authority under the Clean Water Act. In 2015, the Environmental Protection Agency (EPA) issued its “waters of the U.S.” (WOTUS) and gave itself the power to regulate seasonal and relatively insignificant bodies of water as “navigable waters” under the Clean Water Act. In February 2017, President Donald Trump issued an executive order to rewrite WOTUS and thus restrict the application of the rule so as to be “consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States.

In the majority opinion in Rapanos v. United States, Justice Scalia wrote for the majority in 2006 that “Navigable waters” refers to “relatively permanent, standing or flowing bodies of water.” That definition was narrower than that contemplated by the Obama administration and with which it regulated and considered protected under the Clean Water Act. 

Farmers, ranchers, industry representatives, and allied Republicans have frequently complained about WOTUS and the application of Clean Water Act in general. Obama’s EPA broadened its authority beyond “navigable waters” to intermittent ponds and ditches on private land. In a case that galvanized critics in opposition to WOTUS, the Army Corps of Engineers fined a farmer in California $2.8 million in 2012 for plowing over seasonal lakes or puddles known as vernal pools that can be environments for aquatic life or birds. In that case, farmer settled for $1 million after trying to fight the government in court.

In January, erstwhile EPA administrator Scott Pruitt began the review process demanded by President Trump by staying the WOTUS rule until 2020. The injunction that was decided on Thursday annuls Pruitt’s order to stay the rule in the 26 states in which a federal district judge has not already ordered the rule stayed. Thus the Obama-era ruling is the law of the land in those 26 states. Having ruled that the EPA had not met requirements for public notice nor a sufficient comment period, the court’s ruling creates a patchwork of regulation across the country where courts have issued stays blocking the rule. 

“Due to a misguided ruling by a single federal district court today, the overbroad, vague and illegal 2015 Waters of the United States Rule is now the law of the land in twenty-six states,” said American Farm Bureau Federation President Zippy Duvall in a statement. “To avoid widespread uncertainty and potential enforcement against ordinary farming activities in these already-uncertain times, we call on the administration to take immediate steps to limit the impact of this dangerous court decision. The U.S. District Court for South Carolina was wrong to invalidate the agency’s ‘applicability rule’ that had simply delayed the effective date of the 2015 WOTUS rule. The delay rule would have maintained regulatory certainty and stability while the administration completes its reconsideration of the 2015 rule and works to develop a new regulation to provide both clean water and clear rules. Today’s court ruling creates enormous regulatory uncertainty and risk for farmers, ranchers and others in the 26 states that are not already protected from the unlawful 2015 rule by previous court decisions.”

In an email response, senior attorney Tony Francois of the Pacific Legal Foundation -- a nonprofit law firm that defends property rights -- wrote that President Trump had promised to stop the EPA and the Army Corps of Engineers from “abusing ordinary Americans with expansive reinterpretations of the Clean Water Act” and that the agencies would “restrain themselves to regulating ‘navigable waters’ instead of remote and isolated ponds, rivulets, and damp ground.”

Francois wrote that the EPA has prioritized returning to an overbroad view of "navigable waters" that the “Supreme Court has already said is illegal and which the government used to enforce against” a number of citizens. Among them are PLF clients, such as John Rapanos, Chantell and Mike Sackett, John Duarte, the Hawkes Company, and Joe Robertson. Francois wrote: “The court's injunction blocks EPA's most recent misguided maneuver aimed at preserving illegal regulations. The Administration should probably take this as a signal to stop the games and simply adopt a new and legally defensible rule defining navigable waters based on the late Justice Scalia's opinion in Rapanos v. U.S."
 

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Spero News editor Martin Barillas is a former US diplomat, who also worked as a democracy advocate and election observer in Latin America. His first novel 'Shaken Earth', is available at Amazon.

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