North Dakota judge blocks WOTUS rule

EPA said it will continue forward with implementation on all states not part of the North Dakota injunction request.

One day before implementation of the Environmental Protection Agency’s waters of the U.S. rule, a district court judge for the District of North Dakota issued a preliminary injunction preventing the agency from having its rule go into effect.

United States District Courts in Georgia and West Virginia agreed with the EPA and the Army Corps of Engineers that legal challenges to the rule could only be brought in the United States Court of Appeals for the 6th Circuit and therefore denied the requests for preliminary injunction. On August 27, the District Court for North Dakota found that it had jurisdiction and granted the request of a number of States and issued a decision preliminarily enjoining the Clean Water Rule.

In the North Dakota judge’s opinion, Judge Ralph Erickson said it appears the EPA "has violated its Congressional grant of authority in its promulgation of the rule at issue."

He went on to say North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming and two state agencies in New Mexico who filed the lawsuit "have demonstrated that they will face irreparable harm" if the rule were to go into effect Aug. 28.

In total 10 different lawsuits, including attorneys general from 29 states, challenge the agency’s rule based on usurping states’ rights as well as private property rights.  

The EPA has said the rule will only expand federal jurisdiction over those traditional state-regulated waters between 2.84 and 4.65%. Erickson’s order explained that immediately upon the rule taking effect, the rule will irreparably diminish the states’ power over their waters and called the administration’s interpretation of its jurisdiction “exceptionally expansive.”

Under the order issued by the District Court of North Dakota, EPA said those states that obtained the preliminary injunction are not subject to the new rule, and instead continue to be subject to the prior regulation.  “In all other respects, the rule is effective on August 28,” EPA said in a statement.

(For more information on how the rule will impact farmers, read more about what EPA plans for implementation starting Aug. 28.)

EPA said the agencies are evaluating these orders and considering next steps in the litigation.

Missouri Cattlemen’s Assn. president Janet Akers said this decision is reason to be “cautiously optimistic” but also said the administration likely considers the decisions “a minor roadblock” and renewed calls to continue to fight against this rule.

MCA and many agricultural organizations are calling for support of S.B. 1140 which requires the administration go back to the drawing board in developing a new rule with more input from stakeholders. The bill was introduced in April and passed out of its respective committee in June – the final step before consideration on the Senate floor.

Sen. Heidi Heitkamp (D., N.D.), one of the bill sponsors, said she’ll keep pushing Congress to provide a more permanent solution by passing the bipartisan bill that sends the rule back to be reworked by the EPA. “We can work together toward commonsense regulations that don’t place overly cumbersome burdens on the shoulders of farmers so they can keep producing the crops that feed the nation – and we can do it by passing our bill and sending this unworkable rule back to the EPA,” she said.

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