Federal Judge Blocks Waters Rule in Some States

Aug. 27, 2015 - A Federal judge temporarily blocked the EPA and the US Army Corps of Engineers from enforcing its Waters Rule of the United States. The judge said that the states, which had sued arguing that the rule would do irreparable harm to their ability to regulate their own waterways, had a good chance of prevailing in the case. The rule had been scheduled to go into effect August 28.

Ralph R. Erickson, chief Federal judge of the District of North Dakota, wrote "The court finds that under either standard – “substantial likelihood of success on the merits” or “fair chance of success” – 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 Procedure Act) requirements when promulgating the Rule.

North Dakota was the lead state among 13 which sued the EPA over the controversial Waters of the United States (WOTUS) rule. Other states have also sued, but the rule has not been block in those states. A Federal judge in West Virginia earlier this week ruled against a law suit filed by a mining company seeking to block the WOTUS rule.

States throughout the country began filing suits against the rule soon after it was published in late June. Further, memos have come to light in which the US Army Corps of Engineers, which would have powers to enforced the rule, released memos in which it criticized the substance of the rule and the way the EPA had conducted its hearings and deliberations.

The EPA issued the rule saying that language in recent US Supreme Court decisions had led to confusion over which waters EPA had authority to regulate. In particular, the EPA said that the test that waterways with a "significant nexus" to navigable waters would fall under the jurisdiction of the EPA's authority under the Clean Waters Act.

In turn, states and trade groups said in their lawsuits that the EPA's response to the Supreme Court itself was ambiguous and overreaching.

Additionally, environmental groups have filed court documents saying they intend to sue. However they argue the rules actually reduce the numbers and types of waterways that are being protected because the EPA is setting arbitrary "bright line" regulations, such as 4,000-foot distances between waterways, rather than looking at the scientific and ecological basis of a waterway's need for protection.