TRAVERSE CITY, Mich. – A federal appeals court on Friday blocked an Obama administration rule that attempts to clarify which small streams, wetlands and other waterways the government can shield from pollution and development.
In a 2-1 ruling, a panel of the Sixth U.S. Circuit Court of Appeals in Cincinnati put the regulations on hold nationwide until the court decides whether it has jurisdiction to consider lawsuits against them. More than half the states have filed legal challenges, continuing a debate over federal water protection authority that two Supreme Court cases and extensive rulemaking efforts over the past 14 years have failed to resolve.
The Environmental Protection Agency and the U.S. Army Corps of Engineers issued their latest regulations in May, drawing fierce criticism from landowner groups and conservative lawmakers who described them as costly, confusing and a government power grab. Environmentalists and other supporters said they would safeguard drinking water for 117 million Americans while preserving wetlands that filter out pollutants, control floods and provide crucial wildlife habitat.
The EPA and the Corps said in a joint statement that they respected the court's decision and looked forward to defending the rule, which they said "represents the agencies' continuing commitment to protecting and restoring the nation's water resources that are vital for our health, environment, and economy."
Republican Sen. James Inhofe of Oklahoma, chairman of the Environment and Public Works Committee, said the court ruling was "a victory for all states, local governments, farmers, ranchers and landowners" and urged Congress to approve legislation that would force the agencies to rewrite the rule. The House has done so, while similar measure has cleared a Senate committee. The White House has threatened a veto.
U.S. District Judge Ralph Erickson, in Fargo, N.D., blocked the rule's implementation in 13 central and Western states shortly before it took effect in August. Erickson said judges have wide discretion to craft their orders narrowly or broadly, but he declined to extend his order to additional states.
The Sixth Circuit panel took a different approach, even while acknowledging uncertainty over which court was the proper venue for the legal battle. Judges David W. McKeague and Richard Allen Griffin — both appointed by Republican President George W. Bush — said delaying implementation nationwide "temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new rule and whether they will survive legal testing."
The legal challenges have "a substantial possibility of success," the judges said, adding that it was "far from clear" that the new regulations comply with guidelines in the Supreme Court's latest ruling in 2006.
Judge Damon Keith, appointed by Democratic President Jimmy Carter, dissented, saying the court should not interfere with the rule before the jurisdiction question was answered.
The Obama administration could challenge the 6th circuit ruling. In an immigration case, the administration has appealed a nationwide order issued by a federal judge in Texas that blocks the government from implementing rules to spare nearly 5 million people living in the U.S. illegally from deportation.
At issue in the ruling Friday is which smaller waterways — those not adjacent to navigable rivers or lakes — are subject to federal oversight under the Clean Water Act. The EPA contends that Supreme Court decisions in 2001 and 2006 left 60 percent of the nation's streams and millions of acres of wetlands without clear federal protection.
Under the latest regulations, a business or landowner would need a permit to fill wetlands or otherwise damage affected waters with a "direct and significant" link to larger water bodies downstream that have legal protection.
Opponents such as the American Farm Bureau Federation said the provisions give federal officials power over even intermittently flowing streams that farmers use for drainage and irrigation — "nearly every pothole and ditch in our country," Senate Majority Leader Mitch McConnell of Kentucky said.
John Rumpler, senior attorney for the advocacy group Environment America, said the regulations are "backed by more than 1,200 peer-reviewed scientific studies showing that smaller headwaters and streams are vital to the health of our rivers and lakes."