Published: Sun, August 19, 2018
Research | By Jody Lindsey

Federal court reinstates clean water rule delayed by Trump administration

Federal court reinstates clean water rule delayed by Trump administration

A federal judge in SC on Thursday blocked the Trump administration from delaying enforcement of a controversial Obama-era definition of what constitutes Waters of the United States (WOTUS), issuing an injunction making the rule law in 26 states where the 2015 Clean Water Rule (CWR) has not already been stayed.

Chemical manufacturers must immediately comply with the Chemical Disaster Rule, a set of requirements aimed at keeping communities safe from toxic disasters, following a federal court ruling on Friday which called the Trump administration's delay of the rule "arbitrary" and illegal.

"The Suspension Rule typified this administration's disregard for the environment, the rule of law, and public input", said Steven Goldstein, legal fellow at Defenders of Wildlife.

Only two judges participated in the decision because Judge Brett Kavanaugh, now a nominee for the U.S. Supreme Court, was a member of the panel when the case was argued but did not participate in the opinion. The rule redefined which wetlands and small waterways are covered by the Clean Water Act.

According to the EPA, the proposed WOTUS definition would include all territorial seas, interstate waters and wetlands and all waters that are now being used - or which were used in the past or which may be susceptible for use in interstate or foreign commerce - including all waters subject to the ebb and flow of the tide. The APA requires agencies to take public comment on regulatory actions before implementing them.

"The U.S. District Court for SC was wrong to invalidate the agency's "applicability rule" that had simply delayed the effective date of the 2015 WOTUS rule", Duvall explained.

Agricultural groups said the ruling reinforces why the Administration needs to take quick actions to limit the impact of this ruling.

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Zippy Duvall, president of the American Farm Bureau Federation, called on the agencies to "take immediate steps to limit the impact of this risky court decision".

The most recent 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, he added.

"While work continues to develop a commonsense and lawful solution, we urge the Administration to immediately take action in the courts to limit the scope of this injunction to SC. The administration is trying to move quickly to remove this protection that was crafted over years with a lot of scientific input and public input".

The National Cattlemen's Beef Association also issued a statement Thursday afternoon warning that the court's ruling means WOTUS remains a threat for farmers and ranchers. (NCBA) chief environmental counsel Scott Yager said the new ruling creates a "zombie WOTUS" and underscores the urgent need to finalize the repeal of the 2015 rule.

The EPA can not delay the rule "by invoking general rulemaking authority under a different statutory provision", of federal clean air law, the court said in the ruling.

The American Farm Bureau Federation and a broad coalition of business organizations have notified the federal district court in SC they will appeal that court's ruling.

An EPA spokesperson said the agency and Army Corps of Engineers will review the ruling to determine the next step.

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