A federal judge ruled that the EPA and Army Corps of Engineers improperly suspended the Obama-era “waters of the U.S. rule,” allowing it to take effect in 26 states where it has not been blocked by court order.
The ruling adds a new frustration to the administration's efforts to replace the 2015 rule, which expanded the definition of what wetlands and streams are regulated by the Clean Water Act.
U.S. District Judge David Norton in South Carolina agreed with environmental groups that the agencies failed to follow the public-comment requirements of the Administrative Procedure Act in implementing a suspension rule this year that was intended to delay enforcement of the 2015 rule. The APA requires agencies to take public comment on regulatory actions before implementing them.
Norton’s order, issued Thursday, applies nationwide, which means that the Obama rule is in effect in 26 states where the rule has not been stayed by other judges. Those 26 states include California, Illinois, Iowa, Louisiana, Michigan, Minnesota, Mississippi, Ohio, Oregon, Texas and Washington.
EPA issued a statement saying the agencies would review the order as they "work to determine next steps.“
Zippy Duvall, president of the American Farm Bureau Federation, called on the agencies to “take immediate steps to limit the impact of this dangerous court decision.”
He said the 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.”
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Scott Yager, chief environmental counsel for the National Cattlemen's Beef Association, said the ruling "effectively brought WOTUS back from the dead in 26 states, creating a zombie version of the 2015 rule that threatens the rights of farmers and ranchers across the country."
Norton wrote in his ruling that the agencies’ “refusal to consider or receive public comments on the substance of the WOTUS Rule … did not provide a ‘meaningful opportunity for comment,’” as required by the Administrative Procedure Act.
Environmental groups welcomed his order.
"It is heartening to have the court affirm the basic rights of Americans to have their voices heard when federal agencies are issuing binding regulations - and to hold this administration accountable for its failure to respect those rights,” said Jan Goldman-Carter, senior director for water resources at the National Wildlife Federation.
The Farm Bureau and 14 other industry groups, meanwhile, are seeking to get the 2015 rule overturned. They filed a brief this spring in a North Dakota court arguing that enforcing the rule would “freeze up” the use of farmland as landowners try to determine “whether every minor drainage ditch, dry arroyo, and nearby puddle is covered by the Clean Water Act."
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