Judge blocks WOTUS rule one day before scheduled implementation
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.
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.”
Watching for news on
the Clean Water Act? Find it on Agri-Pulse. Sign up for a four-week free trial subscription.
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.)
#30
For more news, go to www.Agri-Pulse.com
