Appeals court puts hold on regulation protecting waterways

Fort Pearce Wash flash flooding, St. George, Utah, Aug. 18, 2014 | Photo by Jared Abel courtesy of Lisa Abel, St. George News

TRAVERSE CITY, Mich. (AP) — A federal appeals court on Friday blocked an Obama administration rule that attempts to clarify which small streams, wetlands and other waterways the government can shield from pollution and development.

In a 2-1 ruling, 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. More than half the states have filed legal challenges, continuing a debate over federal water protection authority that two Supreme Court cases and extensive rule-making efforts over the past 14 years have failed to resolve.

The Environmental Protection Agency and the U.S. Army Corps of Engineers issued their latest regulations in May, drawing fierce criticism from landowner groups and conservative lawmakers who described them as costly, confusing and a government power grab. Environmentalists and other supporters said they would safeguard drinking water for 117 million Americans while preserving wetlands that filter out pollutants, control floods and provide crucial wildlife habitat.

The EPA and the Corps said in a joint statement that they respected the court’s decision and looked forward to defending the rule, which they said “represents the agencies’ continuing commitment to protecting and restoring the nation’s water resources that are vital for our health, environment, and economy.”

Republican Sen. James Inhofe, of Oklahoma, chairman of the Environment and Public Works Committee, said the court ruling was “a victory for all states, local governments, farmers, ranchers and landowners” and urged Congress to approve legislation that would force the agencies to rewrite the rule. The House has done so, while similar measure has cleared a Senate committee. The White House has threatened a veto.

U.S. District Judge Ralph Erickson, in Fargo, North Dakota, blocked the rule’s implementation in 13 central and Western states shortly before it took effect in August. Erickson said judges have wide discretion to craft their orders narrowly or broadly, but he declined to extend his order to additional states.

The 6th Circuit panel took a different approach, even while acknowledging uncertainty over which court was the proper venue for the legal battle. Judges David W. McKeague and Richard Allen Griffin — both appointed by Republican President George W. Bush — said delaying implementation nationwide “temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new rule and whether they will survive legal testing.”

The legal challenges have “a substantial possibility of success,” the judges said, adding that it was “far from clear” that the new regulations comply with guidelines in the Supreme Court’s latest ruling in 2006.

Judge Damon Keith, appointed by Democratic President Jimmy Carter, dissented, saying the court should not interfere with the rule before the jurisdiction question was answered.

The Obama administration could challenge the 6th circuit ruling. In an immigration case, the administration has appealed a nationwide order issued by a federal judge in Texas that blocks the government from implementing rules to spare nearly 5 million people living in the U.S. illegally from deportation.

At issue in the ruling Friday is which smaller waterways — those not adjacent to navigable rivers or lakes — are subject to federal oversight under the Clean Water Act. The EPA contends that Supreme Court decisions in 2001 and 2006 left 60 percent of the nation’s streams and millions of acres of wetlands without clear federal protection.

Under the latest regulations, a business or landowner would need a permit to fill wetlands or otherwise damage affected waters with a “direct and significant” link to larger water bodies downstream that have legal protection.

Opponents such as the American Farm Bureau Federation said the provisions give federal officials power over even intermittently flowing streams that farmers use for drainage and irrigation — “nearly every pothole and ditch in our country,” Senate Majority Leader Mitch McConnell of Kentucky said.

John Rumpler, senior attorney for the advocacy group Environment America, said the regulations are “backed by more than 1,200 peer-reviewed scientific studies showing that smaller headwaters and streams are vital to the health of our rivers and lakes.”

Story by JOHN FLESHER, AP Environmental Writer. Associated Press writer Mark Sherman in Washington, D.C., contributed to this story.

Copyright 2015 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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  • native born new mexican October 10, 2015 at 10:57 am

    More agenda 21 actions- Yes I said agenda 21, agenda 21, agenda 21. There I said it four times. This is what is going on. read the darn thing, study it and understand it is about treating humans like a herd of cattle. George Orwell explained what is going on in his book”Animal Farm” Some animals get to sleep on sheets and some animals are just animals and are expendable. Now with robotics and computers that is especially so. The special ones really think they don’t need the rest of us. The special elite ones run the world and want ownership and control of everything. One of the ways they want to accomplish that is by using agenda 21.

    • Chris October 10, 2015 at 12:01 pm

      Anyone who harps on agenda 21 is an idiot. You say “read the darn thing”, but you clearly have never read it yourself. What you have done apparently is to visit crackpot websites that purport to know what agenda 21 is about. The losers of the world, and that includes you, always seek to find conspiracies where there are none to explain why they haven’t done better in life.

      • native born new mexican October 10, 2015 at 6:34 pm

        I expected your comment. It has been put in file thirteen and ignored. You are the uninformed, deliberately ignorant one so I will consider the source and get my truth else where. That goes double for fun bag the troll.

        • fun bag October 11, 2015 at 12:58 am

          I just read AGENDA 21 and it actually warned that OBAMA IS GOING TO TAKE ALL THE GUNS!!! let’s all hide our guns together and thank NM for the warning. amen

    • fun bag October 10, 2015 at 12:15 pm


      • .... October 10, 2015 at 8:11 pm

        LOL. NiCE SHOT CHRIS.! because it’s obvious NBNM has never read it. Those looney tunes Web sites are all over the internet for people like NBNM to scan one paragraph and make them think they know it all

        • Chris October 11, 2015 at 11:10 pm

          thanks. btw, love your screen name. Let’s all just refer to Native Born idiot as the “loser.”

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