Federal Judge Blocks New Obama Administration Water Rule

28 Aug 2015 | Author: | No comments yet »

Breaking: Federal court blocks EPA rule on waterways.

A federal judge on Thursday blocked an Obama administration rule, set to go into effect Friday, that seeks to put more small bodies of water and wetlands under federal protection to ensure clean drinking supplies. A few weeks ago, EPA engineers accidentally breached a mine dam and polluted waterways in southwestern Colorado and northern New Mexico, after having bullied the landowner to access the mine. 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 Friday to begin enforcing the Waters of the United States rule, expanding federal jurisdiction over small waterways like streams and wetlands. He said the rule suffered from a “fatal defect” of allowing regulation of ditches and streams that were remote from navigable waters where federal authorities have jurisdiction. “It appears likely that the EPA has violated its Congressional grant of authority in its promulgation of the rule,” Judge Erickson wrote in an 18-page order.

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 opponents of the rule would win their case. North Dakota Attorney General Wayne Stenehjem, who filed the injunction request, said his reading of the ruling was that it applied to all 50 states, not just the 13 that sued.

But at least the status quo is maintained in the meantime,” he said. “This is big news for North Dakota and really for the 30 states that have sued one way or another.” Similar requests for preliminary injunctions were denied on jurisdictional grounds by federal judges in West Virginia on Wednesday and in Georgia on Thursday. It wasn’t immediately clear if the injunction applied to states other than the 13 led by North Dakota.” The other states involved in the lawsuit are Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, New Mexico, Nevada, South Dakota and Wyoming. The rule was scheduled to take effect Friday. “The risk of irreparable harm to the states is both imminent and likely,” Erickson said in granting the request of 13 states to temporarily stop the rule from taking effect. During a hearing on the injunction motion last week, North Dakota officials warned that the rule could bring oil projects to a standstill, cut into oil production and state tax revenues, make water projects more costly and cause confusion and uncertainty for farmers. The cases have been consolidated into one lawsuit at the Court of Appeals for the Sixth Circuit in Cincinnati, but Erickson argued that he could still issue his injunction.

The EPA and Army Corps said the only ditches that would be covered under the rule are those that look, act and function like tributaries and carry pollution downstream. Erickson highlights several applicable passages to Rapanos, in which Justice Anthony Kennedy joined in a concurrence that struck down an earlier attempt to expand the Clean Water Act to arrogate jurisdiction over wetlands. “While the Agencies assert that the definitions exclusion of drains and ditches remedies the defect,” Erickson writes of the overbroad rule, “the definition of a tributary here includes vast numbers of waters that are unlikely to have a nexus to navigable waters within any reasonable understanding of the term.” The Rule asserts jurisdiction over waters that are remote and intermittent waters. However, “The benefit of that increased certainty would extend to a finite and relatively small percentage of the public,” he wrote. “A far broader segment of the public would benefit from the preliminary injunction because it would ensure that federal agencies do not extend their power beyond the express delegation from Congress.” The case is one of 10 lawsuits challenging the WOTUS rule that have been filed in federal courts across the country, according to court files.

The standard of arbitrary and capricious is met because the Agencies have failed to establish a “rational connection between the facts found” and the Rule as it will be promulgated. The Rule also arbitrarily establishes the distances from a navigable water that are subject to regulation. … Once again, the court has reviewed all of the information available to it and is unable to determine the scientific basis for the 4,000 feet standard.

Based on the evidence in the record, the distance from the high water mark bears no connection to the relevant scientific data purported to support this because any water that is 4,001 feet away from the high water mark cannot be considered “similarly situated” for purposes of 33 C.F.R. § 328.3(a)(8). While a “bright line” test is not in itself arbitrary, the Rule must be supported by some evidence why a 4,000 foot standard is scientifically supportable.

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