The Waters of the United States rule expands the control of the Federal Government over land and water resources traditionally regulated at the state and local level.
On August 27, North Dakota federal judge Ralph Erickson blocked implementation of the Obama Administration’s controversial “Waters of the United States” (WOTUS) rule the day before it was to formally take effect. Judge Erickson ruled that the 13 states suing to block the rule were entitled to a preliminary injunction because the rule exceeded the authority granted by Congress under the Clean Water Act and was procedurally flawed by not providing a “rational“ explanation for arbitrary geographical limits on the reach of federal jurisdiction.
While the rule was issued jointly by the Army Corps of Engineers and Environmental Protection Agency (EPA), the Judge treated it as an EPA rule and even cited two Corps memoranda that were highly critical of the rule before it was issued.
Judge Erickson’s opinion is especially significant because it validates criticisms raised by many states, industry, and landowners that the Rule amounts to a huge expansion of Federal Government controls over land and water resources that have been traditionally regulated at the state and local level. The court did not mince words in finding that “the rule allows for regulation of waters that did not bear any effect on the chemical, physical and biological integrity of any navigable– in fact – water…[noting that] the breadth of the definition of a tributary… allows for the regulation of any area that has a trace amount of water….”
Indeed, while the Rule purported to implement Justice Kennedy’s “significant nexus” opinion in the Rapanos case, Judge Erickson found that, in fact, the WOTUS Rule contradicted Justice Kennedy. He noted that the Rule suffered from the same defect that Kennedy found in Rapanos, namely that “the breadth of the Corps standard” seemed to leave wide room for regulation of drains, ditches and streams remote from any navigable in fact waters.”
The Judge also had harsh words regarding the “flawed process” and the “arbitrary“ 4,000-foot standard for establishing distances from navigable water subject to regulation, finding that it “is unable to determine the scientific basis for the 4,000 feet standard.”
Further the Court’s holding that the public interest factors favored an injunction demonstrates the court’s inclination to give more weight to the adverse impacts of the Rule on the states over EPA’s asserted interests in protecting the waters regulated under the rule.
The ruling has important implications for the 13 states that sued (North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming, and New Mexico). The Rule would have put into place a confusing regulatory program impacting many activities including farming, ranching, mining, and energy development whereby even remote ditches, drains and ephemeral ponds could be swept into the federal regulatory “net” based on questionable data. However, the ruling is only temporary and will be subject to the court’s consideration of the full administrative record on the merits.
Moreover, this ruling only affects the 13 states that filed in North Dakota and remains in effect elsewhere. There are a number of other pending cases, including suits by Texas and Florida that have now been consolidated for a ruling by the Sixth Circuit U.S. Court of Appeals in Cincinnati.
We’ll be tracking the rapidly changing developments under the “Waters Rule.” Stay tuned…
Lawrence R. Liebesman Senior Advisor
Larry joined Dawson & Associates this year. He also sits on the Maryland State Water Quality Advisory Committee, where he provides advice on Chesapeake Bay restoration issues.