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Schwabe in the Field: North Dakota Judge Enjoins WOTUS Rule As Environmental Groups File Suit

August 28, 2015

Overview

Yesterday, a federal judge in the District Court of North Dakota granted a preliminary injunction in favor of thirteen states challenging the Waters of the United States ("WOTUS") rule. The ruling blocks the WOTUS rule from taking effect in the thirteen states involved in the challenge—North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming, and New Mexico.

This case has been building for a year and a half, and the preliminary injunction came on the eve of the implementation of the WOTUS rule. The rule goes into effect today. The thirteen states involved in the North Dakota case will avoid the immediate implementation of the WOTUS rule, though the federal government is likely to challenge the ruling.

One issue in the case was whether the District Court had jurisdiction to hear the case. The EPA and Army Corps of Engineers ("Corps") argued that the case should be heard by the United States Courts of Appeals. But North Dakota Judge Ralph Erickson disagreed. The EPA and Corps made the same jurisdictional argument in two other district courts in the 6th Circuit, and both of those judges agreed. Those cases will now be heard by appellate judges.

Judge Erickson also found that the WOTUS rule exceeds the EPA and Corps' jurisdiction under the Clean Water Act because it proposes to regulate waters that do not have an effect on navigable waters. The judge, also took particular issue with how the WOTUS rule defines a tributary.

In deciding to enjoin the WOTUS rule now, Judge Erickson determined the States will be irreparably harmed because their "traditional power over land and water use" will be superseded by the federal government and there is no means by which the states could recover funds expended to comply with the rule. The harm to the agencies, on the other hand, from delayed implementation would be nil. Additionally, the public would benefit from a "full and final resolution on the merits", a check on federal overreach, and assurance that federal agencies stay within their authority.

Other courts in the 6th Circuit have similar challenges to the WOTUS rule pending before them—as described in an E&E Report earlier today. And, a new lawsuit was filed yesterday in the Northern District of California by the Center For Biological Diversity and other environmental groups. The suit challenges certain aspects of the WOTUS rule, including the rule's exemption for waters where agricultural activities occur.

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