Complete Story
 

Federal Judge Blocks WOTUS in 13 States; EPA Says it will Enforce for Rest of Country

By Steve Kopperud

A federal judge blocked EPA’s controversial “Waters of the U.S.” (WOTUS) rulemaking on Aug. 27, just hours before the rule was to take effect. The move was a partial victory for opponents as the federal court preliminary injunction applies only to the 13 states that joined in filing for the order.

The rule will take effect Aug. 28 in all other states, as scheduled. The states where the preliminary injunction is in force and the rule is blocked are Arkansas, Alaska, Arizona, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.  

The order came after the North Dakota attorney general last week argued the rule should be held in abeyance until the court decides on a federal lawsuit challenging the rule file by North Dakota and several states. More than 24 states and a dozen organizations have filed federal suits in various jurisdictions to block the WOTUS rule, which EPA calls its “Clean Water Rule.” EPA has asked all suits be consolidated into a single case to be heard by the U.S. Court of Appeals in Washington, D.C., a move strongly opposed by the states and industry groups.

Judge Ralph R. Erickson, writing for the U.S. District Court in North Dakota, said, “…the States are likely to succeed on their claim because (1) it appears likely that the EPA has violated its congressional grant of authority in its promulgation of the rule at issue, and (2) it appears likely the EPA failed to comply with APA (Administrative Procedures Act) requirements when promulgating the rule. Additionally, the court finds the other factors relevant to the inquiry weigh in favor of an injunction.”

“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 the “exact amount of land that would be subject to the increase is hotly disputed.”

“More importantly, delaying the rule will cause the agencies no appreciable harm,” he added. “Delaying implementation to allow a full and final resolution on the merits is in the best interests of the public.”

EPA Administrator Gina McCarthy said the final WOTUS “will make it easier to identify protected waters and will make those protections consistent with the law, as well as the latest peer-reviewed science.” She also stressed there will be no new permitting requirements for agriculture under the final rule, and that all current agriculture and farming exemptions from Clean Water Act (CWA) permitting will remain in effect. “The rule does not add new requirements for agriculture,” McCarthy said.

Opponents, including most of agriculture and agribusiness, say the rule is regulatory overreach, threatens private property rights and will allow EPA to impose new permitting to regulate just about any body of water in the U.S., even those which present themselves only occasionally.

Groups representing state and local officials oppose the rule because they say EPA did not adequately consult with them in developing the rule, which, as written, threatens state and local authorities. Dozens of members of Congress have called on EPA to withdraw the rule and reissue it after greater outreach to stakeholders. The House narrowly approved a bill to require EPA to withdraw the rule, but the Senate has not acted. The federal Small Business Administration (SBA) has also asked the rule be withdrawn and reproposed.

Agriculture groups say they will assist their members on complying with the rule in states where the order is not in effect. EPA is expected to roll out the rule’s components gradually, while restraining its enforcement actions. The agency also promised to publish a guidance document on compliance, as well as a question/answer document. Neither have been published, industry sources said.

Printer-Friendly Version

0 Comments