Clean Water Rule Halted By N.D. Judge
EPA’s Clean Water Rule Halted By N.D. Judge
The U.S. Environmental Protection Agency (EPA) final Clean Water Rule (also referred to as the Water of the United States Rule) was supposed to go into effect on August 28th. Under the new rule, the scope of waters protected under the Clean Waters Act, including which features constitute riparian areas, floodplains and tributaries will be re-defined. Opponents of the new rule have pointed out that the “clarified” meaning of “waters of the United States” would have a broader interpretation, resulting in expanded federal jurisdiction over U.S. waterways, however the EPA maintains the new rule would not change the way the agency has implemented its jurisdiction under the Clean Water Act since at least 2008.
Since the rule was proposed in March, there has been backlash from states over the legality of the rule’s expansion of federal jurisdiction under the Clean Water Act. There have been several congressional hearings as well as legislation to prevent the implementation of the new rule. In July, thirty-one states sent a letter to the EPA requesting a delay in the implementation of the rule, but EPA did not grant the requested nine-month delay. Fourteen petitions are pending in the Sixth Circuit asking that the EPA be forced to review the Clean Water Rule. Texas and seventeen other states have also sued the EPA, asserting that the new rule would overstep the states’ right to regulate their own waterways and is contrary to Supreme Court precedent.
Last Thursday (August 27th), North Dakota along with twelve other states succeeded in their request for a preliminary injunction at the U.S. District Court. The Court found that the new rule is likely arbitrary under the Administrative Procedure Act, and overly expansive. For those states that obtained the preliminary injunction, the EPA is prevented from implementing the Clean Water Rule on August 28th. “In light of the order, EPA and the Army Corps of Engineers will continue to implement the prior regulation in the following states: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming,” the EPA said in a statement. “In all other respects, the rule is effective on Aug. 28. The agencies are evaluating these orders and considering next steps in the litigation.”
North Dakota et al v. U.S. Environmental Protection Agency et al., case number 3:15-cv-00059