THANK YOU: Federal Judge Blocks Obama’s EPA Water Rule From Going Into Effect

28 Aug, 2015 by Scott McKay

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The EPA, perhaps best known of late for destroying river systems with mine waste, has been attempting to impose a draconian rule that would expand federal regulatory jurisdiction over practically every area of surface water in the country – all the way down to drainage ditches on farms.

But in a continuation of the rough summer the Obama regulatory machine has had, the federal government just slammed into a wall in federal court yesterday…

A federal judge in North Dakota acted late on Thursday to block the Obama administration’s controversial water pollution rule, hours before it was due to take effect.

Judge Ralph Erickson of the District Court for the District of North Dakota found that the 13 states suing to block the rule met the conditions necessary for a preliminary injunction, including that they would likely be harmed if courts didn’t act and that they are likely to succeed when their underlying lawsuit against the rule is decided.

The decision is a major roadblock for the Environmental Protection Agency (EPA) and the Army Corps of Engineers, who were planning on Friday to begin enforcing the Waters of the United States rule, expanding federal jurisdiction over small waterways, like streams and wetlands.

But the Obama administration says it will largely enforce the regulation as planned, arguing that the Thursday decision only applies to the 13 states that requested the injunction.

“Once the rule takes effect, the states will lose their sovereignty over intrastate waters that will then be subject to the scope of the Clean Water Act,” Erickson wrote in his order.

“While the exact amount of land that would be subject to the increase is hotly disputed, the agencies admit to an increase in control over those traditional state-regulated waters of between 2.84 to 4.65 percent. Immediately upon the rule taking effect, the rule will irreparably diminish the states’ power over their waters,” he continued, calling the Obama administration’s interpretation of its jurisdiction “exceptionally expansive.”

The states and the federal government argued over how to judge the likelihood that opponents of the rule would win their case. But Erickson decided that the regulation is not likely to stand up to full court consideration.

In a statement shortly after the ruling, the EPA was defiant and said that the injunction only applies in the 13 states that filed for it: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.

“In all other respects, the rule is effective on August 28,” EPA Press Secretary Melissa Harrison said in the statement. “The agencies are evaluating these orders and considering next steps in the litigation.”

The EPA’s interpretation appears to conflict with responses from most stakeholders, lawmakers and others.

That the EPA is going to attempt to impose the rule in the other 37 states means the North Dakota case is only the first of the mountain of litigation the Waters of the US rule will have generated – the good news being that the issue will likely be locked up in the courts until after next year’s election.

But the EPA/WOTUS issue is going to be an important one, and it’s going to be essential that not only is a Republican elected but that Republican take action to stop the EPA from overreaching into regulating practically everything in sight.