On Aug. 27, a federal judge in North Dakota approved a preliminary injunction to the 13 States that had filed against the U.S. EPA’s Waters of the , blocking the rule from taking effect in North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming and two New Mexico state agencies.
The rule outlines what waters are “waters of the United States” and can be regulated under the Clean Water Act. The EPA still plans to enforce the WOTUS regulation on the states not covered by the injunction. Other WOTUS lawsuits have been filed, including one in West Virginia, where the judge declined to block the rule on Wednesday, according to a report in The Hill. In another suit Thursday, a Georgia District Court judge declined to rule in a case with 11 states as plaintiffs, saying she lacked jurisdiction. In all, there are 10 lawsuits against WOTUS representing 29 states, business interests, farmers and groups, the report said.
Eureka County Commission Chairman J.J. Goicoechea said in an interview with the Sentinel, “I’m encouraged by the North Dakota judge that granted the injunction. I think that injunction will grant some time for him and others to really dive down into that rule and see exactly what it means. I think, obviously the EPA going forward in the other states that didn’t file suit shows us that this Administration is going to go forward regardless.”
Goicoechea said, “The main thing I’m very happy for is that Attorney General Laxalt was able to file with those other states and that we are all rolled into that.”
Goicoechea noted the legislation in Congress that would overturn the rule. “Maybe this will give us some time to do that and give us something that actually works. Nevada has protective laws on the books through NDEP that are plenty protective. We don’t need the EPA. The problem is, the EPA gets in here and starts rooting around upstream: any time that we’re doing a crossing on a ranch and that water could flow to the Humboldt or to the Truckee, then we’re considered a water of the U.S. We need to get all these questions answered and thankfully we got in front of a judge that allowed us to do that.”
The National Cattlemen’s Beef Association on Friday, Aug. 28 said the EPA which formulated the rule has disparaged the nation-wide concerns of farmers, ranchers and landowners “to the point of calling the concerns of cattle producers ludicrous.”
National Corn Growers President Chip Bowling said Friday. “From the beginning, we have asked for a rule that provides farmers with clarity and certainty about their responsibilities under the Clean Water Act. Instead, what we got was less clarity and less certainty – along with more paperwork, more permits, and more hassle.”
The NCBA also maintains the U.S. Army Corps of Engineers, which co-proposed the rule with EPA, expressed concerns about the rule based on internal memos released in early August that indicated Army Corps officials were concerned the rule would not hold up in court.
Within six months of receiving one million comments, the EPA still moved to finalize the rule which the NCBA saw as “a clear indication there was no intention of considering public comment or stakeholder input.”
Further, the Office of the Inspector General has been asked to investigate allegations that the EPA engaged in improper lobbying to create public support for the regulation.
Legislators concerned about the WOTUS rule, passed legislation out of the House with a 261-155 vote that would withdraw the rule and call for a re-write.
North Dakota Democrat Sen. Heidi Heitkamp co-sponsored a bill that also would withdraw WOTUS, approved by the Senate Committee on Environment and Public Works, but not yet considered by the full Senate.
In response to the N.D. Judge’s decision Thursday, Heitkamp said, “Farmers across North Dakota and the nation deserve better than the sweeping federal rules regulating possibly every pothole on their land – they deserve certainty, and they deserve to be heard before any rule goes into effect,” she said.
As Mike Niwatzki of the Bismarck Tribune noted on Aug. 27, “Erickson wrote in his order that the states are likely to succeed on their claim in part because ‘it appears likely that the EPA has violated its Congressional grant of authority in its promulgation of the Rule at issue.’”
“On balance, the harms favor the states,” Erickson wrote. “The risk of irreparable harm to the states is both imminent and likely. More importantly, delaying the rule will cause the agencies no appreciable harm. Delaying implementation to allow a full and final resolution on the merits is in the best interests of the public.’”
Niwatzki explains, “The states claim the rule infringes on their sovereignty and will be costly and confusing to landowners, farmers, ranchers and local governments who will have to obtain federal permits or undergo federal review for uses affecting tributaries to major rivers and wetlands, ponds, lakes and ditches connected to those tributaries.”
“During a hearing on the injunction motion last week, North Dakota officials warned that the rule could bring oil projects to a standstill, cut into oil production and state tax revenues, make water projects more costly and cause confusion and uncertainty for farmers.”
“Attorneys for the EPA and Corps say the Clean Water Act is already unclear and that the revisions will clear up confusion stemming from Supreme Court decisions in 2001 and 2006 on which streams and wetlands fall under federal authority.”