Posted August 28, 2015
A federal judge in North Dakota blocked the Obama administration’s waters of the U.S. (WOTUS)” rule hours before it was set to go into effect, according to a U.S. News and World Report article available here. The Wall Street Journal also published an article available here and Reuters here.
U.S. District Judge Ralph Erickson in Fargo issued a temporary injunction requested by North Dakota and 12 other states halting the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers from regulating some small streams, tributaries and wetlands under the Clean Water Act. The rule, which has prompted fierce criticism from farmers among others, was scheduled to take effect Friday.
North Dakota Attorney General Wayne Stenehjem, who filed the injunction request, said his reading of the ruling was that it applied to all 50 states, not just the 13 that sued. However, the EPA said in a statement that it applied only to the 13 and it would be enforced beginning Friday in all other states.
The 13 states exempted for now are Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.
The North Dakota ruling follows a separate decision on Thursday in Georgia, where a federal judge rejected a similar request by a different group of 11 states seeking to stop the EPA rule, according to The Wall Street Journal.
The EPA spokeswoman said the Army Corps and the EPA are “evaluating these orders and considering next steps in the litigation.” The agency has the option to ask a higher court to throw out the judge’s injunction.
The EPA has said the rule is necessary to clarify which waters should fall under the protection of the federal Clean Water Act of 1972 after two Supreme Court rulings, in 2001 and 2006, called into question whether and to what extent 60% of U.S. waterways, especially streams and wetlands, should fall under federal jurisdiction.
The WOTUS rule has faced intense opposition from Republicans in Congress, farmers and energy companies. Critics claim the rule vastly expands the federal government’s authority and could apply to ditches and small isolated bodies of water, according to Reuters.
The EPA and Army Corps have argued that the rule does not create new permitting requirements and only seeks to make jurisdictional determinations more predictable.
At least 10 lawsuits have been filed in federal district courts challenging the rule, with at least 27 states joining in the lawsuits. Several petitions for review have also been filed with U.S. federal appellate courts.
“This is a victory in the first skirmish, but it is only the first,” North Dakota Attorney General Wayne Stenehjem in a statement. “I remain confident that the rule will be declared unlawful once all the issues have been presented.”
For more information on the Clean Water Act, please visit the National Agricultural Law Center’s website here.
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