Obama administration to implement Clean Water Rule in most states despite court ruling
September 11, 2015
The Obama administration will implement the Clean Water Rule as scheduled Friday everywhere but in the 13 states that won an injunction against it today, the Environmental Protection Agency said in a statement issued Aug. 27.
"Under the order issued by the District Court of North Dakota, the parties that obtained the preliminary injunction are not subject to the new rule, and instead continue to be subject to the prior regulation.
"In light of the order, EPA and the Army Corps of Engineers will continue to implement the prior regulation in the following states: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming."
But EPA added, "In all other respects, the rule is effective on August 28." The agencies are evaluating these orders and considering next steps in the litigation.
“It appears likely that the EPA has violated its congressional grant of authority in its promulgation of the rule at issue. Judge Ralph Erickson, U.S. District Court (Bismarck Tribune)
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EPA pointed out that "numerous lawsuits were filed challenging the regulation, and several parties sought preliminary injunctions to delay implementation of the rule. This week, United States District Courts in Georgia and West Virginia agreed with the agencies that legal challenges to the Rule could only be brought in the United States Court of Appeals for the 6th Circuit and therefore denied the requests for preliminary injunction.
"On August 27, the District Court for North Dakota found that it had jurisdiction and granted the request of a number of States and issued a decision preliminarily enjoining the Clean Water Rule." (see EPA's full statement here).
Judge Ralph Erickson of the U.S. District Court for the District of North Dakota found that the 13 states suing to block the rule are likely to succeed on their claim in part because "it appears likely that the EPA has violated its congressional grant of authority in its promulgation of the rule at issue," The Bismarck Tribune reported.
"On balance, the harms favor the states," Erickson wrote. "The risk of irreparable harm to the states is both imminent and likely. 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."
Sen. Heidi Heitkamp, D-N.D., praised the ruling, but said Congress should adopt her bill to force EPA to withdraw the rule and start over.
"Farmers across North Dakota and the nation deserve better than the sweeping federal rules regulating possibly every pothole on their land – they deserve certainty, and they deserve to be heard before any rule goes into effect," said Heitkamp.
"It's a positive step that North Dakota's farmers, ranchers, and small businesses have some reprieve from this rule going into effect, but I'll keep pushing Congress to step up and do its job to provide a more permanent solution by passing my bipartisan bill to send this rule back to be reworked by the EPA by incorporating the concerns of farmers, ranchers, and small businesses," she said.
"We can work together toward commonsense regulations that don't place overly cumbersome burdens on the shoulders of farmers so they can keep producing the crops that feed the nation – and we can do it by passing our bill and sending this unworkable rule back to the EPA."
–The Hagstrom Report