Federal Court Ruling Temporarily Halts EPA Action on U.S. Waterways

Late last Thursday, Judge Ralph R. Erickson from the federal district court in North Dakota granted an injunction requested by 13 states to halt the U.S.  Environmental Protection Agency’s (EPA) and U.S. Army Corps of Engineers’ (Corps) joint Clean Water Rule, also known as Waters of the US (WOTUS), which aims to clarify and expand EPA’s jurisdiction over U.S. waterways. In the injunction order Judge Erickson wrote, "Once the rule takes effect, the states will lose their sovereignty over intrastate waters that will then be subject to the scope of the Clean Water Act." He continued, "While the exact amount of land that would be subject to the increase is hotly disputed, the agencies admit to an increase in control over those traditional state-regulated waters of between 2.84 to 4.65 percent. Immediately upon the rule taking effect, the rule will irreparably diminish the states’ power over their waters." Judge Erickson further noted, "...it appears likely that the EPA has violated its congressional grant of authority in its promulgation of the rule at issue, and ... it appears likely the EPA failed to comply with [Administrative Procedures Act] requirements when promulgating the rule."

The injunction, however, is temporary and only lasts until the court reviews the case brought by those 13 states to completely dismiss the rule. Following the injunction, EPA maintained that the injunction only applies to those 13 states (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming) and therefore will, as planned, go into effect on Friday, August 28, (last Friday) in all other states. The case at issue is one of 10 lawsuits currently filed in various courts around the U.S. contesting the WOTUS rule. The 10 cases involve states and industry interests, among others. Also on Thursday, two other federal courts in West Virginia and Georgia, declined to grant similar injunction orders citing lack of jurisdiction.

NRMCA submitted comments back in April 2014 on the then proposal, stating that NRMCA remains "...concerned that the proposed rulemaking as currently written will further confuse and add additional legal and regulatory uncertainty to the ready mixed concrete industry and other businesses and regulated entities. Simply put, the proposed rule is too broad, imprecise, and leaves too much up to agency and third party interpretation to provide the regulated community with the certainty the agencies are seeking to give them." NRMCA continued to request that "...the agencies withdraw the rule and work with their state and local co-regulators, and stakeholders like NRMCA, to come up with a clearer definition of waters of the United States."