FARGO, N.D. — For many farm organizations, this is a victory for agriculture – and one some farmers hope becomes permanent and more widespread.
Thirteen states do not have to implement the controversial "Waters of the U.S." (WOTUS) rule – which took effect Aug. 28 – thanks to a federal court in North Dakota ruling the U.S. EPA, in adopting changes in land use restrictions contained in WOTUS, overstepped its boundaries.
There’s now a push for the North Dakota court to expand its ruling to all 50 states. "While we appreciate the 13-state ruling, all states and all producers deserve the same treatment and consideration under this over-arching rule," said Danni Beer, president of the U.S. Cattlemen’s Assoc.
The preliminary injunction from the court blocks Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming from having to implement WOTUS.
U.S. District Court Judge Ralph Erickson ruled EPA acted outside its jurisdiction by imposing the rule, which opponents allege infringes on the rights of property owners and is not clear in its restrictions, something that because of uncertainties could leave farmers susceptible to lawsuits. There are also claims the rule gives the EPA jurisdiction over more property with Missouri, for example, alleging 99 percent of the land in that state will come under EPA scrutiny.
The EPA and other supporters of WOTUS dispute the claims, saying the rule provides clarity and makes it easier for farmers to achieve the new standards while improving the health of their operation long-term.
"Efforts to improve water quality and conserve natural resources will fail unless farmers, landowners and others are given clear and commonsense guidelines to follow," said Johnathan Hladik, energy policy advocate for the Center for Rural Affairs (CRA).
According to the CRA, WOTUS is aimed at simplifying confusion over the enforcement of the Clean Water Act stemming from U.S. Supreme Court decisions in 2001 and 2006, and ensures farmers and ranchers benefit from preserving water quality while not being overly burdened from complying with the changes.
WOTUS was crafted with help from the U.S Army Corps of Engineers, which a month ago made headlines from the leaking of internal memos that reveal its belief that WOTUS will not survive a court challenge. More than 50 pages of memos released by the U.S. House Oversight and Government Reform Committee allege the rule is flawed.
In one of the memos, Major John Peabody tells the assistant secretary to the Army that data supplied to the EPA for help in drafting the WOTUS rule were "selectively applied out of context and mixes terminology and disparate data sets."
Peabody also stated it was the opinion of the Corps that the rule contains "numerous inappropriate assumptions with no connection to the data provided, misapplied data, analytical deficiencies and logical inconsistencies." The memos also reveal a desire to have the Corps’ name and logo eliminated from any association with the rule.
Agriculture has consistently asked that the rule be withdrawn and rewritten with more input from all parties with an interest in the use and protection of the nation’s water supply. North Dakota Attorney General Wayne Stenehjem, who filed for the temporary injunction, claimed the ruling by the court applies to all 50 states, not just the 13 that sued.
But, in a statement, the EPA said the court’s decision applied only to the 13 and the rule will be enforced in all other states.
In his ruling, Erickson said WOTUS, among other things, would require "jurisdictional studies" of every proposed natural gas, oil or water pipeline project in North Dakota and indicated more land would be under government control.
"While the exact amount of land that would be subject to the increase is hotly disputed, the agencies admit to an increase in control over those traditional state-regulated waters of between 2.84 to 4.65 percent," the judge wrote.