PALMYRA, Ind. (WDRB) – Hours before a federal judge blocked a new EPA water rule, Indiana Attorney General Greg Zoeller questioned whether the agency has the right to broaden its oversight under the Clean Water Act.

Indiana and Kentucky are among 11 states that joined a federal lawsuit in Georgia, asking a judge to stop the EPA from enacting the Waters of the United States rule set to take effect Friday. Critics say the rule would place ditches, temporary streams and other small waterways under federal jurisdiction – exposing farmers and landowners to potential fines for not getting permits.

“Nobody’s saying that we’re not for clean water,” Zoeller told reporters at a Harrison County, Ind., farm Thursday afternoon. “The question is whether they can expand their authority without additional Congressional acts.”

Later in the day, a federal judge in Georgia denied the injunction sought by Indiana, Kentucky and other states, saying the court had no jurisdiction. At the same time, however, a federal judge in North Dakota issued an injunction in a separate case – effectively stopping the rule from going into effect.

The EPA’s proposal is an “exceptionally expansive view” and it appears likely that the agency violated its mandate from Congress in writing the rule, wrote U.S. District Judge Ralph R. Erickson of the North Dakota District.

Erickson noted that the rule would protect some waters in the nation and offer some certainty over how other waterways are regulated.

“The benefit of that increased certainty would extend to a finite and relatively small percentage of the public,” Erickson wrote. “A far broader segment of the public would benefit from the preliminary injunction because it would ensure that federal agencies do not extend their power beyond the express delegation from Congress.”

The Indiana Farm Bureau has concerns with the rule’s lack of clarity, said policy advisor Kyle Cline. For instance, he said, gullies could be placed under EPA control.

“We want EPA to tell us. What do you mean? Come out and show us what you mean by this rule. Because we’re not so sure they could even tell us,” Cline said.

Other groups, such as the National Farmers Union, argue that the rule won’t expand EPA jurisdiction over waters already protected under the Clean Water Act or increase the regulation of ditches.

Jim Benham, president of the union’s Indiana chapter, said his group has been trying to work with the EPA in crafting the rule. But he noted that the rulemaking is happening far away from the farmers who will be impacted.

“They’re 1,000 miles away from the farm and they’re trying to tell farmers how to farm – and that is offensive.”

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