A federal judge has ruled that a controversial regulation that would give the Environmental Protection Agency jurisdiction over small streams and ditches is bureaucratic overreach and has halted the implementation of the rule.
The judge was not pleased with the EPA, who said they would go ahead and implement the regulation in the 37 states that did not sue to end it.
Judge Ralph R. Erickson called the Environmental Protection Agency’s attempt “inexplicable, arbitrary and devoid of a reasoned process,” and issued an injunction preventing the EPA and the U.S. Army Corps of Engineers from claiming oversight of millions of acres of land that contain small bodies of water.
The EPA, though, said it will only honor the injunction in the 13 states that had sued, and will move forward with the rules in the rest of the country.
“In all other respects, the rule is effective on August 28,” the agency said in a statement. “The agencies are evaluating these orders and considering next steps in the litigation.”
Known as the Waters of the United States — or what critics call WOTUS for short — the new rules have been controversial from the start.
The Obama administration said it was trying to clear up confusion after an earlier court decision left it unclear how far the federal Clean Water Act stretched. That law gives the EPA power over “navigable” waters and any land where water runs off into those waters. But what that meant has been hotly debated.
Last year the administration wrote new definitions that would have subjected all waters within 4,000 feet of a navigable water to EPA review and control.
Critics said that would mean the EPA would control lands near ditches with no possible connection to the rivers and lakes that the law was designed to protect. The states that sued said the new rules would create a nightmare scenario of having to get permits and perform environmental studies on every gas or water pipeline, or reclamation or development project.
Judge Erickson, who sits in federal district court in North Dakota, said he’d looked at all the evidence he could, and couldn’t see how the EPAjustified the 4,000-foot standard.
“The rule asserts jurisdiction over waters that are remote and intermittent waters. No evidence actually points to how these intermittent and remote wetlands have any nexus to a navigable-in-fact water,” he wrote.
At bottom, this is all about control and the ability of government to interfere in the property rights of citizens. This rule will not result in an ounce more of clean water. But it will give the government the ability to harrass and sue private citizens for what they do with their own property.
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