Judge Blocks Clean Water Rule Hours Before It Takes Effect

First published on ClimateProgress.org, a project of the Center for American Progress Action Fund, which was recently named one of Time magazine’s Top 25 blogs of 2010.

Late Thursday, a North Dakota federal judge issued a temporary injunction just hours before an Environmental Protection Agency and Army Corps of Engineers rule to protect small streams and wetlands went into effect.

North Dakota and 12 other states requested the injunction, which halts enforcement of the Waters of the United States rule. Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, New Mexico, Nevada, South Dakota, and Wyoming were also party to the suit, which seeks to have the rule, scheduled to go into effect Friday, overturned.

“I am very pleased by today’s ruling, which protects the state and its citizens from the serious harm presented by this unprecedented federal usurpation of the state’s authority,” North Dakota Attorney General Wayne Stenehjem said in a statement. “There is much more to do to prevent this widely unpopular rule from ever taking effect. Still, I remain confident that the rule will be declared unlawful once all the issues have been presented.”

The rule would protect two million miles of streams and 20 million acres of wetlands that were not clearly designated under the Clean Water Act. The rule clarifies what tributaries and wetlands are part of the overall water system and will decrease confusion and expense, the EPA and Army Corps said when the rule was announced. According to the EPA, one out of every three Americans gets drinking water from sources connected to water that did not — and, now, due to the injunction, still do not — have clear protections. The new rule is intended to protect downstream water sources, using current scientific practices to determine what bodies of water are interconnected, officials said.

Stenehjem noted that in the order, Judge Ralph Erickson found that “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 [Administrative Procedure Act] requirements when promulgating the Rule.”

Erickson also wrote in the opinion that the states “have demonstrated that they will face irreparable harm in the absence of a preliminary injunction. Once the rule takes effect, the states will lose their sovereignty over intrastate waters that will then be subject to the scope of the Clean Water Act.”

It is unclear whether the injunction applies only to the states that were party to the suit. The EPA said Friday that it intends to enforce the rule elsewhere.

“Clean water is vital to our health, communities, and economy,” the EPA said in an emailed statement. “The health of rivers, lakes, bays, and coastal waters depend on the streams and wetlands where they begin. Streams and wetlands provide many benefits to communities by trapping floodwaters, recharging groundwater supplies, filtering pollution, and providing habitat for fish and wildlife.”

Opponents have argued that the rule will be overly onerous for farmers and ranchers, and that the EPA is seeking to regulate “ditches.” The EPA’s use of social media to elicit comments has also been questioned.

The rule was first proposed in April 2014 and was open to public comments for more than seven months. EPA Administrator Gina McCarthy told reporters in May that the new rule would not affect the “normal farming operations” that were already carved out under the Clean Water Act. Under the rule, there will be no new requirements for agriculture or forestry, industries which will retain “all the decades long exemptions” they currently enjoy, she said.

Some surprising groups have come out in favor of the rule — including a group of brewery owners, who testified to Congress that they rely on clean water for their industry. Environmental groups have also strongly supported extending the Clean Water Act to cover these small tributaries.

After the ruling, several groups reiterated their support for the rule.

“We are studying the ruling and evaluating our options for further action,” Natural Resources Defense Council attorney Jon Devine said in a statement emailed to ThinkProgress. “Despite this delay, we remain confident that this case and others attacking the rule as too protective will fail, and the rule will remain in place with necessary protections for the health and well-being of our families and communities, our prosperous fisheries and tourism industries.”

These 13 states are not the only group that wants to kill the rule. In June, the Senate passed a bill that would repeal the rule. President Obama has said he will veto legislation that seeks to undo the rule.

Another set of states — including Texas, Missouri, and Louisiana — filed a suit in a Houston federal court, claiming that “the very structure of the Constitution, and therefore liberty itself, is threatened when administrative agencies attempt to assert independent sovereignty and lawmaking authority that is superior to the states, Congress, and the courts.”

And a group of businesses organizations has also sued. The U.S. Chamber of Commerce, National Federation of Independent Businesses, and three other organizations sued the the EPA and Army Corps in July, arguing that the rule “disrupts the careful balance” between local use and development of water sources and federal oversight.

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