WOTUS implementation delayed
The day before the rule was set to be implemented, a Federal Court ruling in North Dakota sided with the National Cattlemen’s Beef Association (NCBA) and Oregon Cattlemen’s Association, blocking the Environmental Protection Agency (EPA) and the Army Corps of Engineer’s “waters of the United States” or WOTUS rule, which was set to take effect August 28. The court issued a preliminary injunction, which blocks the agencies from moving forward with their rule, stating it poses “irreparable harm.” Cattlemen and women agree, and have argued this point for more than a year-and-a-half to the agencies, only to be pushed aside.
Under the guise of clarifying the Clean Water Act, the rule changed the definition of what would be considered a “water of the United States” and, as such, fell under federal jurisdiction. As it turns out, the new rule would apply to nearly all waters across the country with nearly no bounds. For Oregon, that would mean stock ponds, ditches, and potentially even puddles.
“In Oregon, where there is typically an abundance of rain, a rule this broad and ambiguous could bring unnecessary hardship to Oregon’s ranching industry,” Kayli Hanley, communication’s director for the Oregon Cattlemen’s Association said. “Oregon producers work hard to practice responsible water usage. This kind of a rule is like having an outside spectator come into the picture, ignore successful local initiatives, and say, ‘we can do it better than you can.'”
NCBA Environmental Counsel Scott Yager explained that although the court’s injunction is good news for cattle producers, there is still some uncertainty about the scope of the ruling.
“We believe the injunction applies nationally due to the language in North Dakota’s order that halts implementation of the rule, which is a rule that’s national in scope,” said Yager. “However, EPA is taking a contrary position that it only applies to the 13 states in the case: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.”
He said the injunction could last until the court hears the merits of the case, but it could be lifted earlier if EPA succeeds in a challenge against the injunction.
“Since this type of injunction is largely unprecedented, I would advise caution in relying on it as members consider projects that might affect jurisdictional waters in the near future,” said Yager. “However, this is a great victory and sets an important precedent moving forward. We will continue our push in Congress as well in the courts.”
Earlier this year the U.S. House of Representatives passed legislation with bi-partisan support which calls for the rule to be withdrawn. The Senate has a companion bill, S. 1140 The Federal Water Quality Protection Act, which has passed through the Environment and Public Works Committee and is awaiting further action. Yager said the Senate bill would require EPA to withdraw the rule and start over, this time with stakeholders at the table.
Jerome Rosa, executive director for Oregon Cattlemen’s Association, heartily agrees that EPA needs to give the rule another go around. “Multiple aspects of the rule were prepared through a flawed rulemaking process,” he said. “The WOTUS rule in its current state should be withdrawn due to lack of quality assessment and biased rulemaking process.”
On July 24, 2015, the Oregon Cattlemen’s Association, along with Washington, California and New Mexico Cattlemen’s Associations, signed on to a lawsuit through Pacific Legal Foundation against the Environmental Protection Agency and their Waters of the United States rule.
NCBA and Oregon Cattlemen’s Association are calling for cattlemen and women to contact their senators to express support for Senate Bill 1140. The two groups are also encouraging members to send letters to the White House, urging the Administration to end this land grab and rewrite the problematic WOTUS rule. To send letters, visit BeefUSA.org and click on the “Ditch the Rule” tab.