WOTUS, 13 States

The future of the new rule defining “waters of the United States” (WOTUS) does not look promising after its first substantive judicial test. The Rule, issued by the EPA and Army Corps of Engineers, would have gone into effect on August 28, 2015. An injunction issued on August 27, 2015 by the District Court for the District of North Dakota, prevents the Agencies from enforcing the Rule in 13 states, including Nebraska.

A few short hours after the Agencies published the Clean Waters Rule: Definition of “Waters of the United States,” the 13 states filed a complaint in District Court, claiming the rule gives the Agencies authority over waters Congress did not intend them to regulate. Further, the Agencies failed to promulgate the rule properly according to the federal Administrative Procedures Act.

Knowing the court would not have enough time to hear the case before the rule went into effect, and seeking to stop the rule from being implemented, the States filed a motion for preliminary injunction on August 10, 2015. Chief Judge Erickson granted the injunction less than 24 hours before the rule went into effect. Giving the States a temporary reprieve from the EPA’s latest attempt to clarify the jurisdiction of the federal agencies.

The EPA insists its intent is not to expand its jurisdiction over state waters, but rather to reduce the red tape and confusion surrounding the permitting process. The Agencies hope to provide clarity and uniformity to the process by implementing physical and measurable boundaries instead of relying on unpredictable case-by-case determinations for jurisdiction. Something, they say, citizens greatly desire.

The States argued that once the federal agencies take control, they lose sovereignty over more and more waters within their borders. And, relinquishing the control over state sovereign waters is an irreparable harm with unrecoverable monetary losses.

The States effectively persuaded the court that they have a substantial likelihood of success on the merits of their claims, and the harm to the States far outweighs any harm to the Agencies in not implementing the rule. Further, the court found an injunction checking federal agency overreach is to the public’s benefit.

The Agencies have implemented the new rule in the remaining 27 United States, but the injunction will stay in place and the States will retain control over their waters until the District Court holds a full hearing on the matter. Ultimately, the District Court will have to decide whether the Agencies exceeded their authority and failed to comply with APA requirements in issuing the new rule. No doubt there will be appeals no matter which side prevails in the lower court.

Other District Courts dismissed two other cases seeking preliminary injunction, holding the CWA gives the Court of Appeals exclusive jurisdiction on the matter. Additionally, Congressional representatives introduced two separate bills, one in the House of Representatives and one in the Senate, which would require the Agencies to redraft the new WOTUS Rule to curtail its encroachment on state sovereign waters.


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Article by: Amanda Lyon

Graphic by: Amanda Lyon

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