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EPA says preliminary injunction only applies to 13 states.
August 27, 2015
A federal Judge ruling blocks “Waters of the U.S.” rule from going in effect on Aug. 28. U.S. District Judge Ralph Erickson in Fargo, N.D., granted a temporary injunction against the rule that would give the U.S. Environmental Protection Agency and Army Corps of Engineers authority over streams, tributaries and wetlands under the Clean Water Act.
The EPA claims this rule modification to the Clean Water Act is an effort to clarify the agencies' authority. However, after wading through the final version of the WOTUS rule, a long list of state and local governments, businesses and agriculture organizations did not see this rule change as crystal clear.
North Dakota and 12 other states sued the EPA and Corps, stating the rule violates their Congressional authority under the Clean Water Act. Furthermore, the vague description of “waters of the U.S.” is confusing and would require farmers, landowners, businesses and local governments to seek expensive “jurisdictional studies” to determine if National Pollutant Discharge Elimination System permit or be subject to costly violations.
"The risk of irreparable harm to the states is both imminent and likely," Erickson wrote in granting the preliminary injunction. “More importantly, delaying the rule will cause the agencies no appreciable harm. Delaying implementation to allow a full and final resolution on the merits is in the best interests of the public.”
Moreover, he also said “it appears likely that the EPA has violated its Congressional grant of authority in its promulgation of the rule at issue.”
In a statement, the EPA said those 13 states that obtained the preliminary injunction in North Dakota are not subject to the new rule on Aug. 28. Joining North Dakota in the recent federal lawsuit are the states of Alaska, Arizona, Arkansas, Colorado, South Dakota, Idaho, Missouri, Montana, Nebraska, Nevada, Wyoming and state officials in New Mexico. For the remainder of the states, “in all other respects, the rule is effective on Aug. 28,” the EPA states.
Courts in both West Virginia and Georgia found that jurisdiction lies with the Circuit Court of Appeals and has denied the preliminary injunctions.
Since the final version of WOTUS was published in the Federal Register on June 29, 10 other lawsuits have been filed in federal courts across the United States. Two other district court judges were considering emergency injunction, however Judge Erickson was the first to grant the request.
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