Overview
As we previously reported, the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers issued a final rule on May 27 regarding the definition of “waters of the United States” protected under the Clean Water Act (CWA). The rule was immediately challenged by dozens of states, various trade associations, individual companies, and environmental groups in numerous lawsuits around the country – some claiming the rule overextends the agencies’ CWA jurisdiction, while others arguing the rule did not go far enough.
A number of these lawsuits have been consolidated in the Sixth Circuit Court of Appeals. In addition, two cases pending in district courts were dismissed on the basis that jurisdiction over such CWA suits lies exclusively in the Court of Appeals. However, a federal district court in North Dakota ruled in August that it has jurisdiction over a challenge to the rule, and granted a motion to enjoin the rule’s implementation.
The District Court for North Dakota granted the request of 13 states to enjoin the effectiveness of the rule on August 27, the day before the rule became effective. The 13 states include the following: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming. The states argued that because the rule defines certain intrastate waters as jurisdictional, it infringes upon the states’ authority as owners and regulators of the waters. The states also alleged that the federal agencies failed to adequately consult with the states or to consider the states’ comments on the rule.
In its order granting the preliminary injunction, the North Dakota court concluded that the states are likely to succeed on the merits, including the argument that EPA overstepped its authority by extending jurisdiction to waters that do not have a significant nexus to downstream navigable waters.
The North Dakota August 27 decision means the 13 states that obtained the preliminary injunction will not be subject to the new rule during the pendency of the litigation. However, on September 4, the judge denied the states’ subsequent request to apply the injunction in all 50 states. The judge found that other judicial rulings and competing sovereign interests outweighed any desirability for uniformity in applying a national rule.
In light of the order, the new CWA rule is only effective in parts of the nation: EPA and the Army Corps of Engineers will continue to implement the prior regulation in the 13 states involved in the North Dakota litigation.
We will continue to monitor the multiple lawsuits challenging the CWA rule, as well as its implementation in the states where it is currently effective.