WOTUS rule implementation uncertain after conflicting court decisions

This story was updated Aug. 31.

The US Environmental Protection Agency and Army Corps of Engineers began to implement their controversial Waters of the United States (WOTUS) rule in all but 13 states on Aug. 28 after federal district court judges in North Dakota and West Virginia issued conflicting orders.

“Under the order issued by the District Court of North Dakota, the parties that obtained the preliminary injunction are not subject to the new rule, and instead continue to be subject to the prior regulation,” EPA said in a statement e-mailed to OGJ. “In light of the order, EPA and the Army Corps of Engineers will continue to implement the prior regulation.”

It said that in all other respects, the rule is effective on Aug. 28. “The agencies are evaluating these orders and considering next steps in the litigation,” EPA said.

States and several trade associations immediately protested the rule establishing federal control over domestic bodies of water after EPA and the Corps jointly issued it in late May (OGJ Online, May 28, 2015). Several sued to block it.

Ralph R. Erickson, US District Court for North Dakota’s chief judge, issued a preliminary injunction on Aug. 27 delaying scheduled implementation of the rule a day later in Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.

“The states here have demonstrated that they will face irreparable harm in the absence of an injunction,” Erickson wrote. “It is within the purview of the traditional powers of the states to maintain their ‘traditional and primary power over land and water use.’ 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.”

But Judge Irene M. Keeley of US District Court for Northern West Virginia dismissed a challenge on Aug. 26 by Clairsville, Ohio, coal producer Murray Energy Corp. to the agencies’ argument that the federal district court in West Virginia did not have jurisdiction.

Keeley’s ruling said jurisdiction lies within the Sixth Circuit US Court of Appeals in Cincinnati, where Murray also sued to overturn the rule on July 1.

‘Regulatory overreach’

Federal lawmakers and groups opposing the rule focused on the North Dakota court decision’s impact. “The US District Court for North Dakota agreed with 13 states, who believe the EPA’s [WOTUS] rule to be an unconstitutional regulatory overreach exceeding the authority Congress gave it to create rules for the Clean Water Act,” US Senate Energy and Natural Resources Committee member John Hoeven (R-ND) said on Aug. 28.

“If implemented, it will have real impacts not only on farmers and ranchers, but also on small businesses across North Dakota and the nation,” he said. “That’s why we worked to pass a provision in the Senate Interior Appropriations bill in June that prohibits the EPA from implementing the regulation.”

US House Oversight and Government Reform Committee Chairman Jason Chaffetz (R-Utah) said, “Judge Erickson’s ruling is a significant and rightful win for states’ rights. I am pleased that the arbitrary and subjective guidelines imposed by EPA’s WOTUS rule will no longer go into effect today. This ruling is an important check on an administration that continues to overreach in its authority. Such flawed policy should never see the light of day.”

National Association of Manufacturers Senior Vice-Pres. and General Counsel Linda Kelly said, “Manufacturers are responsible stewards of our environment, and protecting our nation’s waters will always be a priority, but we very much agree with the US District Court in North Dakota that the regulation from [EPA and the Corps] was developed through ‘a process that is inexplicable, arbitrary and devoid of a reasoned process.’”

Contact Nick Snow at nicks@pennwell.com.

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