The PJ Tatler

Judge Blocks EPA Water Rule for 13 States Hours Before Implementation

A judge blocked a controversial Environmental Protection Agency rule to “clarify” the definition of protected waters hours before it was set to go into effect Friday.

The EPA Waters of the United States rule covers “most” seasonal and rain-dependent streams, which account for about 60 percent of stream miles in the country, arguing they have “a considerable impact on the downstream waters.”

Wetlands “near rivers and streams” would be protected under the CWA, and “other types of waters [that] may have more uncertain connections with downstream water and protection will be evaluated through a case specific analysis of whether the connection is or is not significant.” Critics say this could be construed to even include ponds and ditches on private property.

The U.S. District Court in North Dakota granted a preliminary injunction against the rule going into effect — but that only covers 13 states that are parties in one suit against the regulations, and the EPA said others would be subject to the rule starting Friday. There are additional pending lawsuits as well, with more than half of the states in the nation participating.

Judge Ralph Erickson said in the injunction “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.”

North Dakota Sen. John Hoeven (R) lauded the ruling as agreeing with 13 states that believe the EPA rule “to be an unconstitutional regulatory overreach exceeding the authority Congress gave it to create rules for the Clean Water Act.”

“If implemented, it will have real impacts not only on farmers and ranchers, but also on small businesses across North Dakota and the nation,” Hoeven said in a statement. “That’s why we worked to pass a provision in the Senate Interior Appropriations bill in June that prohibits the EPA from implementing the regulation. We will continue to work, both in Congress and the courts, to either defund or deauthorize this burdensome rule.”

North Dakota Attorney General Wayne Stenehjem said the judge’s order “protects the state and its citizens from the serious harm presented by this unprecedented federal usurpation of the state’s authority.”

“This is a victory in the first skirmish, but it is only the first. There is much more to do to prevent this widely unpopular rule from ever taking effect,” Stenehjem added. “Still, I remain confident that the rule will be declared unlawful once all the issues have been presented.”

House Science, Space and Technology Chairman Lamar Smith (R-Texas) noted the timing of the partial implementation of the rule.

“The irony of this rule is not lost on millions of Americans. While the agency has been frantically working to regulate the trickle of small streams in Americans’ backyards, the EPA has failed at its core mission to protect the environment and is responsible for a toxic spill that polluted waterways impacting at least three different states,” Smith said. “The Waters of the U.S. rule should be halted until EPA can clean up its act and get its priorities in order.”