Up Sucker Creek

Up Sucker Creek
Photo Courtesy of the Lake Oswego Library

Tuesday, October 13, 2015

Sixth Circuit Court expands WOTUS injunction to nation

On Friday, the injunction against the new Clean Water Act Rule, Waters The United States, was expanded to the entire nation.  Oregon cannot and must not implement any of the new WOTUS regulations.

What does this mean for the citizens of Oregon and Lake Oswego?

Oregon is one of a group of respondant and intervenor states that support the new Rule, so it will be interesting, to See how each responds if the Rule is overturned in the U.S. Supreme Court.  If Lake Oswego goes ahead with its new Storm Water Management Manual which is based on part on new State DEQ regulations, will it force unnecessary regulations on LO property owners?  Will the City and State be liable for financial damages for implementing new rules when it had foreknowledge of the nationwide injunction?

However the Supreme Court eventually rules, will the City or State be liable for any property or financial damages that result from new stormwater systems that pose an added expense to property owners and/or fail to work as proscribed?  The Stormwater Manual and other WOTUS-related regulations that are being evaluated have some serious issues to be resolved that most people won't know about until they have to deal with them, one by one.  

At this point, Oregon and Lake Oswego can chose to put a hold on the new regulations or lessen their impact on property owners until all appeals are decided.  But given recent history with the LOT
Water Treatment Plant project and the Wizer development, parties who are determined to see something happen rarely take heed of the trouble that may lie ahead.  Elitist agendas continually take presecdence over public interests, and citizens are left to shoulder the burden, one by one.

The next time you go outside when it's raining, face heavenwards at the droplets coming down and say a prayer of thanks to the EPA, the Corp of Engineers, and the United States for bounty of all the Waters.of the United States without which you cannot live.  Be careful where you put any water you brought in with you  - proper disposition of all WOTUS might make you a walking nexus!  Hooray!  

October 9, 2015
Sixth Circuit Court of Appeals stays WOTUS

Today, the Sixth Circuit Court of Appeals (Court) issued a stay nationwide against the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) from enforcing the revised definition of “waters of the United States” (WOTUS), also known as the Clean Water Rule.

This is a win for the 18 states that petitioned the Court that the Clean Water Rule went beyond the EPA and USACE’s regulatory jurisdiction and “altered the existing balance of federal-state collaboration.” The petitioners further contended that the new WOTUS definition was inconsistent with U.S. Supreme Court precedent (Riverside Bayview Homes, SWANCC, and Rapanos) and failed to conform to the requirements of the Administrative Procedures Act.  The stay will remain in place until further order from the court.

The Court held that the stay is proper and allows for “a more deliberate determination” as to whether WOTUS was a proper exercise of executive power enabled by Congress and federal law. Additionally, the Court acknowledge the states’ concern over cooperative federalism and their shared responsibilities under the Clean Water Act. The Court reasoned that a stay “temporarily silences the whirlwind of confusion” of WOTUS and whether the final rule can withstand legal challenges.

The stay parallels the recent decision by the District Court of North Dakota that preliminarily enjoined 13 states from complying with the new rule.

Read decision HERE

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