- The Washington Times - Friday, October 9, 2015

A federal appeals court dealt the Obama administration’s environmental agenda a major blow, halting a water rule and saying more time is needed to determine whether the regulations are legal.

Critics had said the rule would give the Environmental Protection Agency control over irrigation ditches, canals and small streams and that the federal government would have a say in permitting and land-use decisions over millions of acres of land surrounding those waters.

A lower court blocked the rule in 13 states, but the 6th U.S. Circuit Court of Appeals issued a nationwide stay Friday, undercutting the EPA’s push to try to carry out the rule in the rest of the country.

In a 2-1 decision, the majority said the process the EPA used to write the rules was “facially suspect” because the agency didn’t seek public comment on the far-reaching limits it imposed.

Eighteen states challenged the rule in court, and the judges said a more “deliberate determination” is needed to determine whether the rule is “proper” under federal law.

The court also said there is no proof that American waters will suffer significant harm if the rule is put on hold.

In a statement, the EPA said it respected the court’s call “for more deliberate consideration of the issues in the case.”

“The court acknowledges that clarification of the Clean Water Act is needed and that ‘agencies 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,’” the EPA said.

For now, though, the less-intrusive rules go back into effect.

EPA officials said its plans — known as the Waters of the U.S. rule, or WOTUS — were intended to clear up confusion over earlier court decisions on the Clean Water Act. That law gives the EPA power over “navigable” waters and any land where water runs off into those waters. What that meant has been hotly debated.

Last year, the administration rewrote definitions that would mean all waters within 4,000 feet of a navigable water would be subject to EPA review.

Critics said that would put land under EPA control even if it had no connection to the rivers and lakes the Clean Water Act was designed to protect.

The rules were supposed to take effect in August, but a federal judge in North Dakota issued a halt in 13 states, saying the administration appeared to be making an illegal end run around Congress.

The appeals court’s ruling expands that halt.

“A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing,” Judge David McKeague said in the majority opinion.

Judge Damon J. Keith dissented, saying he wasn’t sure the court had jurisdiction to hear the case.

Opponents cheered Friday’s decision and said it represents a win for a variety of stakeholders who would have faced harsh federal mandates.

“The 6th Circuit’s order to suspend nationwide the implementation of the Obama administration’s final WOTUS rule is a victory for all states, local governments, farmers, ranchers, and landowners,” Sen. James M. Inhofe, Oklahoma Republican and chairman of the Senate Environment and Public Works Committee, said in a statement.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

• Ben Wolfgang can be reached at bwolfgang@washingtontimes.com.

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