There’s a Dam Blocking the New Waters of the United States Rule

While I don’t want to take you on a full “Dam Tour” (a reference to the classic National Lampoon movie “Vacation”) the USEPA recently promulgated a rule which defined the Waters of the United States or WOTUS. Trying to figure out what is a WOTUS has been a pretty complicated affair; good for those charged with trying to figure that out, but bad for those paying them to do so.

So the USEPA and the Army Corp of Engineers (USACE) decided to try to make it a little easier for those paying the bills of those trying to figure out what a WOTUS is. A quick overview of the Rule, which was supposed to go into effect on August 27, 2015 (we just love it when we can give some hot off the press news), at least according to the Agency, (USEPA, that is) was designed to “protect the streams and wetlands” and simplify, clarify, and identify those waters. (Take a look at http://www2.epa.gov/cleanwaterrule/what-clean-water-rule-does).

Now my reader, you may find it hard to believe that some folks just did not agree with the USEPA’s assessment of their Rule. In fact, some of them went so far as to sue the Agency in federal court. Those suing (29 states, along with business interests representing energy, developers, farmers and others) said the Rule could make a ditch a WOTUS and could require folks owning those ditches to get permits.

One of the suits was filed in North Dakota (States of North Dakota, et. al. v. U.S. Environmental Protection Agency, Dist. Ct. ND, Civil No. 3:15-cv-59. That suit was joined by thirteen (13) states, of which Missouri is one. The Judge there issued a preliminary injunctions just hours before the Rule was to go into effect. This “dammed” up USEPA and the USACE’s ability to enforce the Rule which some say would expand “federal jurisdiction over small waterways, like streams and wetlands.” (Take a look at http://thehill.com/policy/energy-environment/252140-judge-blocks-obamas-water-rule).

Now the Judge said that “[o]nce 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”. He went on to say that “[w]hile 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.” Finally he said that USEPA’s view of its jurisdiction was “exceptionally expansive.” (Take a look at what I told you to take a look at in the paragraph above).

So what’s next? USEPA says that it will enforce the Rule in all the other thirty-seven (37) states. The AG that won the injunction said the injunction is applicable in all fifty (50) states. What is really interesting is that two other Judges, in two other federal courts decided they would not block the implementation of the rule. So, we have what we like to call a conflict. As such, my guess is that there will be some litigation on that issue (probably not a hard guess to make).

With respect to this case, USEPA says it’s looking at the order before deciding whether to appeal. I bet they will.

Thanks for reading.