Tag: Water

Federal Appeals Court Bitchslaps Obama Regime Over Water Regulations

Sixth Circuit Blocks EPA Water Rule Nationwide – Hot Air

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Several weeks ago, a federal court issued an injunction against EPA enforcement of a new rule based on the Clean Water Act, arguing that the Obama administration had exceeded its Congressional authority. The ruling only applied in the thirteen states party to the lawsuit, however, but the administration still argued that the North Dakota court did not have the jurisdiction to rule on the issue, and that only an appellate court could hear the case. Regardless, the EPA announced shortly afterward that it would continue to enforce the new rule in all other states.

Be careful what you wish for. The Sixth Circuit handed down its own injunction against the rule today, and broadened its effect to all 50 states:
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A federal court ruled Friday that President Obama’s regulation to protect small waterways from pollution cannot be enforced nationwide.

In a 2-1 ruling, the Cincinnati-based Court of Appeals for the Sixth Circuit delivered a stinging defeat to Obama’s most ambitious effort to keep streams and wetlands clean, saying it looks likely that the rule, dubbed “waters of the United States,” is illegal.

“We conclude that petitioners have demonstrated a substantial possibility of success on the merits of their claims,” the judges wrote in their decision, explaining that the Environmental Protection Agency’s new guidelines for determining whether water is subject to federal control – based mostly on the water’s distance and connection to larger water bodies – is “at odds” with a key Supreme Court ruling.

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The court called into question both the rule itself and the process by which the EPA promulgated it. The opinion notes that the EPA apparently ignored Rapanos in its zeal to seize more federal authority:
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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.

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Furthermore, the court expresses concern over what appeared to be a bait-and-switch in the comments process, and that the EPA simply cannot substantiate the rule with any solid science – a point made by the North Dakota court in August, too:
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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).

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Remember, though, that this is a temporary injunction. The issues raised by the judges in this 2-1 decision are not fully established in an evidentiary process. Even the initial ruling in August was a pretrial injunction, not a final decision on the merits. However, in both cases the courts decided that the states have a substantial likelihood of establishing these facts in the eventual trial, and that the enforcement of the rule would create at least some unnecessary harm. The Sixth Circuit’s decision doesn’t agree that it would be irreparable harm, but also doesn’t see the need to rush into enforcement of a flawed rule either:
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There is no compelling showing that any of the petitioners will suffer immediate irreparable harm – in the form of interference with state sovereignty, or in unrecoverable expenditure of resources as they endeavor to comply with the new regime – if a stay is not issued pending determination of this court’s jurisdiction. But neither is there any indication that the integrity of the nation’s waters will suffer imminent injury if the new scheme is not immediately implemented and enforced.

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…

A stay allows for a more deliberate determination whether this exercise of Executive power, enabled by Congress and explicated by the Supreme Court, is proper under the dictates of federal law. 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. A stay honors the policy of cooperative federalism that informs the Clean Water Act and must attend the shared responsibility for safeguarding the nation’s waters.

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Still, the plaintiffs are clearly delighted with the injunction:
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The National Federation of Independent Business, one of the groups that sued to stop the rule, cheered Friday’s decision.

“Small businesses everywhere this morning are breathing a sigh of relief,” Karen Harned, executive director of the group’s legal foundation, said in a statement.

“The court very properly acknowledged that the WOTUS rule has created a ‘whirlwind of confusion’ and that blocking its implementation in every state is the practicable way to resolve the deep legal question of whether it can withstand constitutional muster.”

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The Hill calls this “a stinging defeat,” but it may be more of a “stinging delay” at this point. At the very least, the EPA’s power grab has been put on hold, and that’s a welcome breather at this stage of the Obama administration.

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After Contaminating River With Orange Sludge, EPA Delivers Replacement Water For Navajo Farms In Dirty Oil Tanks

EPA Draws Ire Of Navajo Nation After Water Arrives In Dirty Oil Tanks – Washington Times

The EPA spill that contaminated rivers in Colorado and New Mexico was bad enough, but now Navajo Nation officials are fuming after a delivery of water for livestock and crops arrived in dirty oil tanks.

Navajo Nation president Russell Begaye’s finger came up brown and oily after he ran it inside the spigot of a water tank, one of nine delivered by an EPA contractor to Shiprock, New Mexico, in the aftermath of the accident that sent orange mining waste down the Animas and San Juan rivers.

“This is what they expect our animals to drink and to use this and pollute our farmland, our canals?” said Mr. Begaye in video posted Wednesday on his Facebook page.

“This is totally unacceptable. How can anybody give water from a tank like this that was clearly an oil tank and expect us to drink it, our animals to drink it? And to contaminate our soil with this?” said Mr. Begaye. “It’s just wrong. Clearly, it’s wrong.”

In separate statements Thursday, the EPA and its contractor, Triple S Trucking in Aztec, New Mexico, told KOB-TV in Albuquerque that they will investigate the problem.

“Triple S Trucking has received assurances that each of the tanks that were used were steam cleaned and inspected prior to use at Shiprock,” said the company’s statement. “Triple S Trucking will continue to work cooperatively to investigate this complaint about contamination of the agricultural water.”

The episode comes as another black eye for the EPA, which is already under investigation for accidentally triggering the 3-million-gallon torrent of wastewater from the Gold King Mine near Silverton, Colorado, and then waiting 24 hours before reporting it.

“Every new development of the EPA spill story is worse than the last,” said Jonathan Lockwood, head of the free-market group Advancing Colorado.

In another video, Mr. Begaye draws a cup of water from the tanker’s spigot that comes up speckled with oily debris.

“It just angers us,” he said. “We told them to haul all this stuff off.”

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Navajo and agency officials have agreed that Friday will be the last day for EPA water deliveries for farmland and livestock, according to the EPA.

“EPA will work closely with the Navajo Nation in the coming weeks to ensure that a long-term monitoring plan for the San Juan River is implemented,” said the EPA in a Thursday statement. “In addition, EPA is positioned to provide technical assistance in flushing irrigation ditches on the Navajo Nation.”

The Navajo Nation had refused to turn on its intakes from the San Juan River until its own environmental agency gave the water a clean bill of health. Other communities in Colorado and New Mexico reopened their valves last weekend after EPA testing found the Animas and San Juan rivers at pre-spill conditions.

The Interior Department and the EPA’s Office of Inspector General are investigating the Aug. 5 accident.

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*AUDIO* Mark Steyn: Turning Cow Manure Into Drinking Water


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