By The Oklahoman Editorial Board | Published: Fri, August 24, 2018
THE Obama administration's “Waters of the United States” rule is an overly broad and economically destructive proposal that several courts have found wanting. But the Trump administration's effort to suspend the rule while it's overhauled was recently stymied by a federal district court judge in South Carolina, creating regulatory uncertainty across the nation.
Oklahoma Attorney General Mike Hunter is pushing the courts to rectify this situation, and he deserves credit for his swift response.
The WOTUS regulation, advanced in 2015, seeks to dramatically redefine “waters of the United States” under the federal Clean Water Act to include not only sitting bodies of water but any place with a “significant nexus” to bodies of water. In application, this means much typically dry land will be treated as a body of water subject to far stricter environmental regulations. The rule not only declared dry land to be wet based on high-water marks, but also when computer simulations can concoct a scenario where land might someday be flooded.
The Environmental Protection Agency's own estimates showed the rule created roughly 4.6 million miles of new “waters,” far more than the 3.5 million miles impacted by prior law.
More than 30 states challenged the rule, and judicial review wasn't kind to WOTUS.
In August 2015, a federal court in North Dakota enjoined enforcement of WOTUS across several states, concluding the EPA had likely exceeded its legal authority and violated the federal Administrative Procedures Act. A federal court in Georgia later reached a similar conclusion and enjoined WOTUS in several more states.
In October 2015, the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay of the WOTUS rule, echoing the North Dakota court's logic. But that stay was overturned when the U.S. Supreme Court concluded district courts, not courts of appeals, had jurisdiction.
Read this story on NewsOK, here: https://bit.ly/2P8hRCM
After his election, President Trump issued an executive order to reconsider the WOTUS Rule. But now a district court in South Carolina has issued an injunction on the Trump administration's suspension of WOTUS.
In a brief requesting that the suspension of WOTUS be reinstated, Hunter notes the South Carolina ruling has created “an intolerable regulatory patchwork across the country.” As things stand, WOTUS is technically in effect in 26 states, including Oklahoma, but not in 24 others.
The attorney general argues this “will deprive Oklahoma of jurisdiction over a significant percentage of the waters over which it had previously exercised sovereign regulatory authority” and deprive Oklahomans “of the ability to improve their property without undergoing costly and time-consuming federal permitting requirements.”
Hunter calls WOTUS “nothing more than bureaucratic overreach” that “negatively impacts farmers, ranchers and the rights of private property owners in the state and nation.”
Based on multiple prior court decisions, it's clear the WOTUS rule is illegal and its days are numbered. It makes no sense to impose these illegal and burdensome requirements on Oklahomans, and citizens everywhere should hope Hunter succeeds in challenging the rule's implementation here.