Jessica Karmasek Sep. 1, 2015, 12:01pm


BISMARCK, N.D. (Legal Newsline) - A North Dakota federal judge, in an order last week, blocked an Environmental Protection Agency rule that extends the federal agency’s authority to all bodies of water.

Chief Judge Ralph Erickson, for the U.S. District Court for the District of North Dakota, wrote in his 18-page order that it “appears likely” the EPA failed to comply with certain requirements when promulgating its new “Waters of the United States” rule under the Clean Water Act.

Under the rule, the agency’s authority extends to almost all bodies of water, no matter the size or frequency.

The rule was published in the Federal Register June 29, with the EPA and the U.S. Army Corps of Engineers set to begin enforcement Aug. 28.

Erickson, in his order Thursday, granted an injunction blocking the implementation of the rule, as requested by 12 states and two New Mexico state agencies. The decision delays the rule’s August effective date.

Among the states that sought the injunction: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, North Dakota, South Dakota and Wyoming. The New Mexico Environment Department and New Mexico State Engineer also joined in filing the complaint.

The states argue in their complaint, filed in June, that the new definition violates the CWA, National Environmental Policy Act, the Administrative Procedures Act and the U.S. Constitution, and would cause the states “irreparable harm.”

Montana Attorney General Tim Fox said he was “gratified” the federal court granted the states’ request, but noted the challenge still needs to be briefed, argued and decided by the courts.

However, the injunction will maintain the status quo until the case is fully decided, Fox said.

“Today’s ruling is an important and substantive step in protecting our rights under the Tenth Amendment to manage and protect our state’s lands and resources in the manner we believe to be most fitting and effective for us,” the attorney general said.

The National Association of Manufacturers also applauded the judge’s decision.

NAM’s Manufacturers’ Center for Legal Action challenged the regulation in July, joining other concerned groups representing manufacturers, agriculture and businesses across the U.S.

“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 U.S. District Court in North Dakota that the regulation from the Environmental Protection Agency and Army Corps of Engineers was developed through ‘a process that is inexplicable, arbitrary and devoid of a reasoned process,’” said Linda Kelly, senior vice president and general counsel for NAM. “This critical decision to delay implementation of this costly rule is a welcome sign for manufacturers who have challenged this regulation in our courts.

“We will continue to fight and challenge this overreaching and legally dubious regulation.”

A separate 11-state coalition has asked a judge in the U.S. District Court for the Southern District of Georgia to also issue an injunction.

The states, which include Indiana, North Carolina and West Virginia, among others, also argue the rule violates the law and would do irreparable damage to them and their citizens if enforced.

Oklahoma Attorney General Scott Pruitt has filed his own, separate lawsuit against the EPA over the rule.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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Organizations in this Story

U.S. Environmental Protection Agency (EPA)
1200 Pennsylvania Ave NW
Washington, DC 20460

National Association of Manufacturers
733 10th St NW
Washington, DC 20001

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