Judge blocks WOTUS rule one day before scheduled implementation

By Spencer Chase

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WASHINGTON, Aug. 27, 2015 - A federal judge has issued a preliminary injunction stopping the Obama administration's Clean Water Rule from going into effect on Friday in a number of states, a victory for agricultural interests that had brought lawsuits to halt the rule.

In his opinion, Judge Ralph Erickson, a District Court judge for the District of North Dakota, said it appears the EPA “has violated its Congressional grant of authority in its promulgation of the Rule at issue.” He went on to say that the states and other parties that brought the lawsuit - North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming and two state agencies in New Mexico - “have demonstrated that they will face irreparable harm” if the rule were to go into effect Aug. 28.

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In a statement, the EPA said the 13 states that obtained the preliminary injunction in N.D., are not subject to the new rule on Aug. 28. However, it said, for the remainder of the states, “in all other respects, the rule is effective on August 28.”

Many in the agricultural community saw the Clean Water Rule - also known as Waters of the U.S., or WOTUS - as an expansion of EPA authority over new bodies of water, such as smaller waterways and wetlands, that are not currently subject to Clean Water Act protections.

The EPA and the Army Corps of Engineers - the agencies responsible for drafting and implementing WOTUS - have maintained that the rule was developed to clarify the definition of “waters of the U.S.,” as was required by the Supreme Court, and will not apply to drainage ditches or other agricultural water features if they do not act or function like tributaries capable of carrying pollution downstream. 

“Once the Rule takes effect, the States will lose their sovereignty over intrastate waters that will then be subject to the scope of the Clean Water Act,” Erickson said, adding that the “exact amount of land that would be subject to the increase is hotly disputed.”

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In a statement, North Dakota Attorney General Wayne Stenehjem, who filed the injunction request, said he was “very pleased” with the ruling, but said there is more work to be done to prevent “this unprecedented federal usurpation of the state's authority” from becoming the law of the land.

“This is a victory in the first skirmish, but it is only the first,” Stenehjem said. “There is much more to do to prevent this widely unpopular rule from ever taking effect. Still, I remain confident that the rule will be declared unlawful once all the issues have been presented.”

Circuit and therefore denied the requests for preliminary injunction. The District Court for North Dakota, however, on Thursday, found that it had jurisdiction and granted the preliminary injunction to the states that had sued.

In its statement, EPA noted that since the rule was published in the Federal Register, numerous lawsuits were filed challenging the regulation, and several parties sought preliminary injunctions to delay implementation of the rule. It pointed out that United States District Courts in Georgia and West Virginia this week agreed with the EPA and the Army Corps of Engineers that legal challenges to the rule could only be brought in the U.S. Court of Appeals for the 6th

EPA said it and the Army Corps of Engineers are evaluating the judicial orders and considering next steps in the litigation.

Some on Capitol Hill also celebrated Judge Erickson's ruling, and many lawmakers still seek to withdraw the rule legislatively. One such lawmaker is Heidi Heitkamp, a North Dakota Democrat who also served as the state's attorney general. In a statement, Heitkemp - who is one of 43 senators to cosponsor a bill (S.1140) essentially telling the EPA and Army Corps of Engineers to start over on WOTUS - called the injunction “a positive step.”

“Farmers across North Dakota and the nation deserve better than the sweeping federal rules regulating possibly every pothole on their land - they deserve certainty, and they deserve to be heard before any rule goes into effect,” Heitkamp said in a statement.

Julie Slingsby, the press secretary for the House Committee on Natural Resources, issued a statement after the decision was delivered as well.

“The Waters of the United States rule is unlawful and an abuse of executive power,” Slingsby said. “The EPA needs to be stopped before it does more harm to our nation's precious water resources.”

The temporary injunction does not halt the rule entirely, but rather holds off its implementation during legal proceedings. However, Erickson said in his ruling that the states are “likely to succeed on their claim” and that “greater public interest favors issuance of the preliminary injunction.”

The lawsuit before Erickson's court is one of several across the country filed by more than two dozen states and many more agricultural, energy, and development groups and private entities.

 

(This story was updated with EPA statement at 10:50 p.m.) 

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