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Last month, the United States Circuit Court of Appeals for the Sixth Circuit, [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance], pushed aside jurisdictional questions and issued a stay, effective nationwide, blocking implementation of the “Waters of the United States” (WOTUS) rule, [subscribers can access an enhanced version of this rule: lexis.com | Lexis Advance], by USEPA and the Army Corps of Engineers. The rule must await a final decision by the court before it can become effective.
The case brought together a series of substantive challenges to the rule by different industry groups and eighteen states.
The rule was estimated by the agency to expand its jurisdiction over more waterways and wetlands. With this expansion, more permits would be required to allow for construction and development activities, such as the building of roads and bridges in and around these small, and often temporarily, flowing waters, and could grow the potential number of sites subject to the Spill Prevention, Control, and Countermeasure (SPCC) program to list just two immediate impacts.
The court will now move forward to address two issues – first whether it has jurisdiction to make a final ruling in the matter and second whether a permanent injunction against implementation of the rule is warranted. If the court finds the case is properly before it, it will determine whether the federal definition of WOTUS is consistent with the Clean Water Act, [subscribers can access an enhanced version of this Act: lexis.com | Lexis Advance], and whether USEPA acted arbitrarily in the development of the rule.
Click here to read a full text of the ruling: http://www.ca6.uscourts.gov/opinions.pdf/15a0246p-06.pdf.
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My friend in CA was not allowed to widen his driveway by a few feet because it infringed on a creek where salmon might spawn. Well, this 'creek' was a drainage ditch, dry except when it rained, that was about 3 miles from touching the creek where there is an occasional salmon.
My grandpa's farm has a small creek and he had to pay for folks to come in and place rocks on the sides to prevent erosion and was not allowed to even have a log laying across the creek as it impeded water flow. I'm talking about a 2 foot wide, 6 inch deep slow flowing creek.
When you give the EPA and Army Corps carte blanche authority down to this level, you get asinine decisions like these. You need some common sense middle ground, you need to defer areas like this to states and localities as much as possible.
No one is saying it is okay to dump benzene in a creek, but nor should a non-essential drainage ditch be automatically protected from some dirt being dumped near it.
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