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.
