Judge Stays Water Rule in 13 States

On August 27, 2015, a federal district judge in North Dakota stayed the final "Waters of the U.S." rule of the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (ACOE), which was set to take effect on August 28, 2015. The Court later clarified that the rule is only stayed in the 13 states that joined as plaintiffs in the challenge; the rule is final in the remainder of the states.

The “Waters of the U.S.” regulation (WOTUS) requires expensive, time-consuming federal permits to develop private property near most water bodies.  Before WOTUS only waters which are navigable came under federal regulation.

NAR strongly opposed WOTUS and, working closely with industry partners and the Waters Advocacy Coalition, submitted extensive comments to EPA to express NAR's grave concerns including:

1. The conclusions of EPA’s WOTUS cost/benefit analysis
2. The validity of EPA’s scientific study
3. The lack of an adequate economic impact analysis of the proposed regulation.
4. Additionally, WOTUS could subject property owners to a taking without adequate compensation in violation of the 5th Amendment of the Constitution.

The North Dakota District Court ruling concerns whether the final rule impermissibly expands the scope of the federal agencies' jurisdiction over small waterways beyond that granted by Congress, and it addressed several areas: 

First, the District Court found that the rulemaking did not constitute, under the Clean Water Act (CWA), either an "effluent limitation" or "other" limitation on discharges or discharge processes.

Second, the District Court relied on documents from the Corps and the EPA to find that the federal agencies' rulemaking had been "inexplicable, arbitrary, and devoid of a reasoned process."

Third, the District Court chastised the agencies for publishing a final rule that "materially altered" the proposed rule without offering the public an opportunity to review and make further comment.

Finally, the Court noted that it was "unpersuaded" by the agencies' argument that they had no obligation to perform an Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA).

The court's issuance of a preliminary injunction is anticipated to be appealed, and the outcome of the appeal proceeding could alter the landscape of one or more of these procedural issues. But at the moment, EPA and ACOE appear to be under substantial pressure from this ruling.

Over 25 states have filed suit against the Environmental Protection Agency over the recent finalization of the Waters of the U.S. regulation. The lawsuits contend that the new rule violates the Clean Water Act, the Constitution and the Administrative Procedure Act.

Many more lawsuits, including from industry groups and other organizations, are expected in the coming days.

Read more (DuaneMorris.com article)