The US Court of Appeals for the Sixth Circuit has issued a nationwide stay to prevent the Environmental Protection Agency and the US Army Corps from redefining Waters of the United States (or WOTUS).
The government agencies attempted a controversial rulemaking to “clarify” their jurisdiction over non-navigable waters. In essence, the agencies were attempting to take regulatory control over temporary waters such as ditches, ponds and seasonal washes.
The court stated:
[W]e conclude that petitioners have demonstrated a substantial possibility of success on the merits of their claims. 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).
What is of greater concern to us, in balancing the harms, is the burden—potentially visited nationwide on governmental bodies, state and federal, as well as private parties—and the impact on the public in general, implicated by the Rule’s effective redrawing of jurisdictional lines over certain of the nation’s waters. Given that the definitions of “navigable waters” and “waters of the United States” have been clouded by uncertainty, in spite of (or exacerbated by) a series of Supreme Court decisions over the last thirty years, we appreciate the need for the new Rule. See Rapanos, 547 U.S. 715; Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985). In one sense, the clarification that the new Rule strives to achieve is long overdue. We also accept that respondent agencies have conscientiously endeavored, within their technical expertise and experience, and based on reliable peer-reviewed science, to promulgate new standards to protect water quality that conform to the Supreme Court’s guidance. Yet, the sheer breadth of the ripple effects caused by the Rule’s definitional changes counsels strongly in favor of maintaining the status quo for the time being.
April 2016 The automatic discrimination and exclusion of man from nature, like his access and use of the land, presupposes man as a destructive force for change, absent a relative hard look at the natural forces of change. Setting aside lands for non-use does not encourage wise use symbiotic tenets, which man has traditionally formed in his coexistence with nature.
January 2012 • IBLA rules against miner for "late" filing
• Wyoming appeals roadless decision
• Mercury reduction program slated for California
• Oregon wilderness
• Oregon miner prevails in lawsuit against Forest Service and District Ranger
• Canada pulls out of Kyoto Climate Treaty
October 2011 In other words, just like those that move next to an airport and then complain about the noise, Mr. Riskedahl deliberately went out of his way to “witness and document the effects of suction dredge mining,” and when he found some, he was annoyed by it!
February 2017 One caller wondered why he should be required to join MMAC, asked why MMAC was not a non-profit, and compared it to some kind of extortion attempt. If he had questions like these, I assume there are others with similar questions and I will address them here.
April 2017 We spent our evening at some informal get-togethers at two private residences in the DC area, which provided the opportunity to talk with staff members from Congress, other agencies, and a few consultants working on public land issues. We found common ground with many of them, and found a strong ally in a former Congressman turned consultant who agreed that Mining Districts provide the smartest legal route...