Mill Creek, Missouri
In what is being hailed as a “stinging defeat” of the overreach from the U.S. Army Corps of Engineers and the Environmental Protection Agency’s redefinition of what waters need to be regulated by the government, on Friday, the Six Circuit Court of Appeals in Cincinnati issued a STAY on the takeover in order to study whether or not they really have the jurisdiction to rule on it. From The Hill:
In a 2-1 ruling, the Cincinnati-based Court of Appeals for the Sixth Circuit delivered a stinging defeat to Obama’s most ambitious effort to keep streams and wetlands clean, saying it looks likely that the rule, dubbed Waters of the United States, is illegal.
“We conclude that petitioners have demonstrated a substantial possibility of success on the merits of their claims,” the judges wrote in their decision, explaining that the Environmental Protection Agency’s (EPA) new guidelines for determining whether water is subject to federal control — based mostly on the water’s distance and connection to larger water bodies — is “at odds” with a key Supreme Court ruling.
The judges said they have yet to decide whether they have jurisdiction to review the regulation, but a stay would make it easier to determine that.
“A stay allows for a more deliberate determination whether this exercise of executive power, enabled by Congress and explicated by the Supreme Court, is proper under the dictates of federal law,” the court said.
The ruling itself expanded the original stay put in place by a North Dakota court in late August. That stay covered 13 states. This stay covers the entire country. The claim? From the opinion as quoted by The Washington Post:
Petitioners first claim that the Rule’s treatment of tributaries, “adjacent waters,” and waters having a “significant nexus” to navigable waters is at odds with the Supreme Court’s ruling in Rapanos, where the Court vacated the Sixth Circuit’s upholding of wetlands regulation by the Army Corps of Engineers. Even assuming, for present purposes, as the parties do, that Justice Kennedy’s opinion in Rapanos represents the best instruction on the permissible parameters of “waters of the United States” as used in the Clean Water Act,it is far from clear that the new Rule’s distance limitations are harmonious with the instruction.
Moreover, the rulemaking process by which the distance limitations were adopted is facially suspect. Petitioners contend the proposed rule that was published, on which interested persons were invited to comment, did not include any proposed distance limitations in its use of terms like “adjacent waters” and significant nexus.” Consequently, petitioners contend, the Final Rule cannot be considered a “logical outgrowth” of the rule proposed, as required to satisfy the notice-and-comment requirements of the APA, 5 U.S.C. § 553. See Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174 (2007). As a further consequence of this defect, petitioners contend, the record compiled by respondents is devoid of specific scientific support for the distance limitations that were included in the Final Rule. They contend the Rule is therefore not the product of reasoned decision-making and is vulnerable to attack as impermissibly “arbitrary or capricious” under the APA, 5 U.S.C. § 706(2).
Basically, while the litigation of the case – one of multitudes against this “water rule” – is going on, the Sixth Circuit Court sees no reason to burden the nation with the draconian land grab. From the beginning, that is what the people who watch the EPA and the Army Corps of Engineers have said this is, and given the breadth of the amount of water the Obama Administration sought to wrestle under its control with an executive order, that is increasingly what it is looking like. The actual Clean Water Act covers NAVIGABLE waters. The definition of that is what is being argued.
(Decorative ponds need to be under federal control? Really? Man-made fishing holes where the only vessels floating on them are canoes and john boats? Are these people serious? Spring fed rivers where weekend partying is wall to wall in the summer and everyone is on an innertube? Where does it end?)
Lest good conservatives think that the legislature has been sitting idly by and letting the executive branch do their job for them, a House of Representatives Bill blocking this water rule from going into effect died in the Senate. And that is part of the point of the petitioners (plaintiffs or in this case, the good guys): the decision making to develop this rule seems to be “arbitrary or capricious”. (Or deliberate and calculated, but courts generally don’t get into that kind of territory.)
So, for now, the EPA and the Army Corps of Engineers have been halted from taking over every ounce of water on the ground in the USA so that the courts can study the matter and figure out if they have the jurisdiction to actually make a decision on it. Not a total victory, but at least the people calling foul on the EPA are getting a hearing.