September 4, 2015

Clean Water Rule – the court giveth, the court taketh away

By M. Reed Hopper Senior Attorney

Last week a federal district court in North Dakota issued an injunction staying enforcement of the Corps and EPA’s new rule redefining “waters of the United States.”  In response to a challenge from 13 states, the court held the new rule apparently violated substantive as well as procedural requirements of the law. The injunction did not limit the stay to any particular party or geographic region suggesting the rule was stayed nationwide.  However, the EPA immediately issued a statement that it would continue to apply the new rule in any state other than those that brought this particular challenge.  The court then asked for further briefing on the issue.

Today, the court affirmed the new rule was likely invalid and the court had the authority to issue a nationwide injunction.  However, the court was reluctant to impose its decision on other states that may support the rule (over 30 states oppose it) and concluded the injunction only applied to the present parties which includes North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming, and the New Mexico Environment Department; and New Mexico State Engineer.

Because the State of New Mexico itself was not a party, but rather the Environment Department and the State Engineer, its is unclear whether the state as whole is covered by the injunction.  Also, both sides in the suit now have an incentive to appeal the injunction–the EPA, because the injunction was issued in the first place, and the States, because the injunction was limited only to the parties.  This is complicated by the fact that no conclusive determination has yet been made as to whether the numerous challenges to the rule should be brought in a federal district court or a federal circuit court of appeals.

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