EPA changing rules on the fly? (Editorial)

(Sept. 8, 2015) In the states that describe the Mid-Atlantic region of the United States — Maryland, Delaware, Virginia, New Jersey and Pennsylvania — and 32 other states, WOTUS is now in effect.
But what of the other 13?
Late in the night of Aug. 28, Chief Judge Ralph Erickson of the District Court of North Dakota issued an order to stop the EPA’s Waters of the U.S. rule in its tracks.
He found strong evidence that the EPA was arbitrary and capricious in its rulemaking, and he saw no connection between key provisions of the rule and science that was presented to support it.
Based on evidence presented so far, he ordered that the rule be stopped while the litigation continues to a conclusion.
But his preliminary injunction prevented the audacious rule from taking effect only in 13 states — Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.
Of course, the ruling was hailed within the environmental community.
“Efforts to improve water quality and conserve natural resources will fail unless farmers, landowners, and others are given clear and common sense guidelines to follow,” said Johnathan Hladik of the Center for Rural Affairs.
On May 27, the Environmental Protection Agency and the U.S. Army Corps of Engineers finalized the Clean Water Rule “to protect the streams and wetlands that form the foundation of the nation’s water resources from pollution and degradation.”
In opposition the American Farm Bureau Federation launched a “Ditch the Rule” campaign.
It contended that “puddles, ponds, ditches, ephemerals — land that looks like a small stream during heavy rain but isn’t wet most of the time — and isolated wetlands dot the nation’s farmland. The EPA and the U.S. Army Corps of Engineers on March 25 issued a proposed rule that would expand its regulatory authority under the Clean Water Act to these types of land features and waters, giving the agencies the power to dictate land-use decisions and farming practices in or near them. The rule will make it more difficult to farm or change a farming operation to remain competitive and profitable.”
AFBF argued that in establishing the rule, the EPA exceeded its authority under the Clean Water Act.
The Center for Rural Affairs countered that the Clean Water Rule, known as the “Waters of the U.S.,” seeks to cut through the chaos and confusion surrounding Clean Water Act enforcement, which arose from Supreme Court decisions in 2001 and 2006.
“The rule goes to great lengths to ensure that farmers and ranchers benefit from preserving water quality but are not overly burdened with the rule’s implementation,” Hladik said.
Hladik said, “We hope for a timely legal resolution that removes uncertainty and allows those impacted to begin implementing plans to move forward.”
The AFBF with its “Ditch the Rule” campaign saw some progress in the issuing of the injunction.
AFBF President Bob Stallman applauded the court’s decision “as yet another example of EPA’s reckless and unlawful behavior in the face of science, economics and the law. Whether you’re a farmer, a rancher, a homebuilder or landowner of any stripe, the evidence is clear: This rule simply has to be stopped.”
Stallman said he expected the EPA to enforce the rule in the 37 other states not impacted by the North Dakota injunction and said the time has come for Congress to act and pass S.B. 1140 to “send EPA back to the drawing board. We won’t stop until this rule is finished.”
Meanwhile as the debate continues about what is needed to keep the nation’s water clean, the EPA might be well-advised to clean up its own act.
Even as Judge Erickson was pondering the issuance of an injunction, the EPA was clearing out an abandoned mine in Colorado and workers allowed one million gallons of contaminated water into the Animas River near Durango.
For miles and miles, the river turned a toxic orange.
“This in insanely tragic and absolutely crazy,” said a native of the area. “It feels like something out of a sci-fi movie.”
The AFBF’s “Ditch the Rule” campaign has put a crack in the EPA’s wall. It should serve as an incentive for Congress to get into the act.