PORTLAND, Ore. (CN) – The Obama-era Clean Water Rule still won’t take effect in Oregon, after a federal judge ruled Wednesday that its long-delayed implementation could “irreparably harm” farmers and ranchers who might have to pay for permits to harm intermittent streams if they end up winning their lawsuit challenging the rule.
Oregon Cattlemen’s Association in April sued the Environmental Protection Agency, claiming it too broadly defined the types of waters that cannot be polluted, by including not only rivers and streams that are “navigable-in-fact,” but also those upstream from waters literally navigable by boat, as well as intermittent streams and isolated wetlands.
The 2015 rule, intended to clarify the Clean Water Act, has been stalled by litigation in courts around the country.
U.S. District Judge Michael Mosman agreed Wednesday to further suspend the rule’s implementation in Oregon while the case proceeds. Mosman said it would constitute irreparable harm for farmers and ranchers represented by the association to have to pay for permits to pollute streams and wetlands that, through their lawsuit, may turn out not to be covered by the rule.
Mosman said that while there is “solid sense and solid science” behind the Clean Water Rule, his job was to evaluate a political question, not a scientific one.
“As a question of science, that assertion [that the rule is based on solid science] is almost certainly correct, but not particularly helpful to the question I have in front of me today, which is: How much could Congress do to protect navigable waters – not how much did it do,” Mosman said. “That question is not a scientific one so I set the science aside.”
Meanwhile, the dispute could be derailed by new Trump administration rules that a government attorney said in court Wednesday were imminent. The Environmental Protection Agency unveiled proposed rules in April that would significantly reduce the waters regulated under the Clean Water Act. The new rules would repeal the 2015 Clean Water Rule and redefine “navigable waters” to exclude groundwater, wetlands that lack a direct surface connection to navigable waters and intermittent streams that don’t feed tributaries.
U.S. Attorney Andrew Doyle told the court Wednesday that the Office of Management and Budget had drafted a new action that was under review as of last Friday.