A federal court in Fargo, ND, temporarily blocked an Environmental Protection Agency rule intended to give the EPA and the Army Corps of Engineers authority over smaller waterways, such as ditches and tributaries, that previously were under control of state regulators.
US District Court of North Dakota Chief Judge Ralph Erickson issued a preliminary injunction to delay an updated water rule from taking effect as scheduled in late August. That rule is entitled the "Clean Water Rule: Definition of Waters of the United States."
Erickson's ruling prompted confusion as to whether it applied nationwide or to only the 13 states involved in that case. Those states asked Erickson to apply his ruling nationwide, but Erickson later ruled the injunction applied just to the 13 states.
Besides North Dakota, the other states are Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, New Mexico, Nevada, South Dakota, and Wyoming.
EPA contended that the injunction, which prevents the rule from taking effect while the lawsuits play out, applied only to the 13 states.
After EPA issued its interpretation of his ruling, Erickson asked both sides to submit briefs on whether his preliminary injunction should apply nationally. On Sept. 4, he limited application of his injunction to the 13 states.
North Dakota Att. Gen. Wayne Stenehjem initially said he believed the temporary injunction applied to all states.
"This is a victory in the first skirmish, but it is only the first," Stenehjem said. "There is much more to do to prevent this widely unpopular rule from ever taking effect."
EPA noted in its brief that more federal rulings are involved, including one US District Court that denied granting injunctions to the rule for some other states.
"The court's preliminary injunction is based on and addresses harms alleged to affect only plaintiff states," EPA attorneys wrote of the 13 states led by North Dakota. "Award of preliminary injunctive relief that sweeps in parties not before this court is neither necessary or appropriate."
In addition, EPA attorneys said seven states -- Connecticut, Hawaii, Massachusetts, New York, Oregon, Vermont and Washington -- and the District of Columbia planned to intervene in litigation before the 6th US Circuit Court of Appeals in Cincinnati.
The Cincinnati appeals court was considering whether the Northern West Virginia federal court district had authority in a lawsuit brought by Murray Energy Corp., a coal producer, against EPA and the Corps.
State vs. federal jurisdiction
Although the Clean Water Act has been in place since 1972, the new water rule expands the number of waterways falling under federal jurisdiction. In addition to the North Dakota ruling, federal judges in other states are considering injunctions on the rule.
"The risk of irreparable harm to the states is both imminent and likely," Erickson said in his Aug. 28 ruling. He said state governments, particularly Wyoming, would have no way of avoiding increased expenses under the regulation.
Erickson said the updated water rule required more study, including jurisdictional studies of natural gas, oil, and water pipeline projects, particularly in North Dakota, which led the litigation. Farmers also have expressed concern about the rule.
Rep. Lamar Smith, R-Texas, and chairman of the House Science, Space, and Technology Committee, said EPA's rule "would begin a new era of government control over private property." Smith noted what he called the irony of EPA seeking to control more waterways after an Aug. 5 wastewater spill in Colorado that appears to have been caused at least in part by EPA contractors.
Various congressional committees were scheduled to begin hearings on the EPA toxic spill in September after Congress returns from its August recess.
