EPA’s power grab

Water rule beyond its authority

In the 11th hour of a court dispute, Arkansas landowners were granted a temporary reprieve from an unprecedented expansion of the Environmental Protection Agency’s (EPA) jurisdiction, the Waters of the U.S. rule (WOTUS).

This new rule, advertised as a harmless effort to keep our water clean, actually implements the most restrictive land-use requirements imposed in decades.

While the promotion of clean water is an important government responsibility under the Clean Water Act, this rule goes far beyond a reasonable attempt to monitor and preserve clean water. Despite Supreme Court rulings that suggest the EPA is beyond its regulatory purview and without any directive from Congress, the WOTUS rule extends the agency’s authority to include small rivers, streams, ponds, and even ditches and low-lying land.

To make matters worse, in its zeal to pass WOTUS regardless of public opinion, the EPA actually began manufacturing support for the rule in an unprecedented and illegal grass-roots lobbying campaign using social media. The drive, meant to combat the negative comments the agency had received against WOTUS, increased artificial support that has since been used as proof of the rule’s popularity.

The most essential and democratic component of the rulemaking—the public notice and comment process—was abused and corrupted in a way that drowned out opposition to help justify the agency’s actions. Rulemaking by unelected agency officials should take into account the whole view from the affected public—not just its own and that of its political allies.

We are blessed with abundant water resources, all of which would be brought under EPA regulation if the WOTUS rule is allowed to stand, meaning farmers, ranchers, developers, and landowners would be subject to permit requirements, forced management practices, and nuisance lawsuits.

Thankfully, U.S. District Judge Ralph Erickson of South Dakota issued a temporary injunction in late August, blocking the EPA from enacting WOTUS in 13 states (Arkansas included).

Judge Erickson’s injunction will remain in place until a complete hearing is held to determine the merits of the challenges filed by the 13 attorneys general, including Leslie Rutledge, who acted in the best interest of Arkansas landowners. In addition to Arkansas, the states included in the injunction are Alaska, Arizona, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.

Waters of the U.S. has to be stopped, not temporarily by injunction, but permanently. The EPA needs to withdraw this rule and start over.

Farmers are being drawn into the crosshairs by EPA even though they using the same safe, scientifically sound, and federally approved crop-protection tools they’ve used for years.

The courts or the U.S. Congress must prevent these rules from taking effect. The U.S. House of Representatives has already passed the Regulatory Integrity Protection Act. This legislation would restrict the EPA from implementing the WOTUS rule and send the EPA back to the drawing board in a way that requires local landowner and stakeholder involvement. Unfortunately, the U.S. Senate has not yet considered that legislation.

Judge Erickson’s injunction included some strong language, including that he found strong evidence that the EPA was arbitrary and capricious in its rulemaking. “It appears likely that the EPA has violated its congressional grant of authority in its promulgation of the rule,” he said as part of the ruling. Judge Erickson said the rule suffered from a “fatal defect” of allowing regulation of ditches and streams that were not connected to “navigable waters.”

Even in the face of this injunction order, the EPA has asserted that it will enforce the new rule in the 37 states not part of the North Dakota lawsuit. That means this unlawful rule will continue to create uncertainty and legal risk from nuisance lawsuits for commonplace land uses like farming and ranching.

While Arkansas is currently protected by the injunction, we hope that our system of checks and balances can permanently prevent this ill-conceived power grab from taking effect.