August 28, 2015

Controversial Waters of the U.S. Rule Blocked in 13 States

On August 27, 2015, U.S. District Judge Ralph Erickson of North Dakota blocked implementation of the EPA and Army Corps’ Waters of the U.S. (WOTUS) rule, which was to take effect August 28.

The WOTUS rule is concerning to many industry sectors because it would significantly expand Clean Water Act (CWA) jurisdiction for the agencies. In particular, the rule would extend jurisdiction to broad definitions of tributaries and adjacent waters, and would also codify the agencies’ ability to make subjective determinations of what constitutes WOTUS under a “significant nexus” determination.

The North Dakota lawsuit is one of several lawsuits against the rule lodged in federal district courts across the country by other states, industry groups and private entities. In the North Dakota action, 13 states sought an injunction to prevent implementation of the rule while their legal challenge proceeds through the court. Several similar requests for injunction have been dismissed by other courts for lack of jurisdiction, including by the federal district court in Georgia shortly after the North Dakota decision on August 27.

The North Dakota court bucked this trend, instead granting the requested injunction in its August 27 order. This order held that the district court did have jurisdiction over the challenge to the rule. Calling the rule “exceptionally expansive,” the North Dakota court ruled that “it appears likely that the EPA has violated its Congressional grant of authority in its promulgation of the Rule at issue.”

EPA is downplaying the North Dakota decision, stating that the injunction only stayed the implementation of the rule in the 13 states party to that particular case: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming. However, this decision will give congressional opponents of the regulation ammunition in their opposition and will energize the proponents as Congress returns in September and considers legislation to overturn the regulation.

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