I recently reported that EPA regulations that were poised to go into effect at the end of last week, broadening the scope of the agency’s power under the “Waters of the United States” Act.

A federal judge has blocked its implementation hours before it was due to take effect:

Yesterday, a federal district court in North Dakota granted a preliminary injunction blocking implementation of a new Environmental Protection Agency rule defining “waters of the United States” under the Clean Water Act. This rule is important because many of the CWA’s regulatory prohibitions, including the prohibition on developing wetlands without a federal permit, apply only in “waters of the United States” (WOTUS). The Supreme Court rebuked the EPA and the Army Corps of Engineers for applying an unduly expansive WOTUS definition (see SWANCC v. U.S. Army Corps and Rapanos v. United States), and this rule is an effort to reassert and clarify the scope of federal regulatory jurisdiction under the CWA.

The suit in question was filed by 13 states (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming), which claimed, among other things, that the WOTUS rule is a threat to state sovereignty because it asserts federal jurisdiction over wetlands and waters (and even some relatively dry land) that should be subject to state government control. As a general matter (and as the Supreme Court has recognized) land-use control is generally beyond the scope of federal power. In this case, the district court concluded that the states were likely to succeed on the merits as the EPA had adopted an “exceptionally expansive” view of its own jurisdiction under the CWA. According to the court, the WOTUS rule “allows EPA regulation of waters that do not bear any effect on the ‘chemical physical, and biological integrity’ of any navigable-in-fact water,” and therefore exceeds the limits on federal regulatory authority identified by the Supreme Court in Rapanos.

Judge Ralph Erickson of the District Court for the District of North Dakota found that the states suing would probably have been harmed if courts didn’t act promptly. The ruling lasts only as long as the 13-state lawsuit persists and may be overturned.

However, taking a page from President Obama’s playbook, the agency is going forward with implementation anyway:

In a statement shortly after the ruling, the EPA was defiant and said that the injunction only applies in the 13 states that filed for it: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.

“In all other respects, the rule is effective on August 28,” EPA Press Secretary Melissa Harrison said in the statement. “The agencies are evaluating these orders and considering next steps in the litigation.”

The EPA’s interpretation appears to conflict with responses from most stakeholders, lawmakers and others.

An under-reported aspect to the push-back on WOTUS is that the Army Corps of Engineers, tasked to implement the regulation, is angry at the EPA’s disregard for Corps concerns over the final WOTUS rule and its portrayal that the process represented a joint endeavor.

The Corps’ legal analysis found that if “serious flaws” were not corrected, the rule would be “legally vulnerable, difficult to defend in court, difficult for the Corps to explain or justify, and challenging for the Corps to implement.”

It further found the final rule abandoned “sound principles of science” in the proposed draft and “introduced indefensible provisions into the rule.”

Among the allegations, the Corps contended:

• That the rule removes Clean Water Act protections from some bodies of water where it is now enforced. That’s because the rule limits coverage to lakes, ponds and other waterways that are within 4,000 feet of a navigable water or tributary. The Corps says there’s no scientific basis for the limit, and no legal authority for the agencies to abandon its current jurisdiction.

• That because the EPA acknowledged that abandoning jurisdiction could create “significant adverse effects on the human environment, the National Environmental Policy Act requires the Corps to perform an Environmental Impact Statement

• That while the rule envisions the agencies extending regulation to isolated bodies of water that have a “significant nexus” with navigable waters of the United States, the definitions of such bodies as having “no hydrological connection with navigable waters” makes it unlikely the agencies will be able to establish a nexus that will withstand a court challenge.

Abandoning sound science and good engineering practices will be EPA’s legacy under Obama.


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