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Fargo judge blocks EPA’s ‘waters’ rule from taking effect

U.S. District Court Judge Ralph Erickson

BISMARCK – States opposed to a new clean water rule expanding federal jurisdiction over state waters claimed a temporary victory Thursday when a federal judge blocked the rule from taking effect Friday.

Judge Ralph Erickson granted the preliminary injunction requested by North Dakota and a dozen other states that sued the U.S. Environmental Protection Agency and Army Corps of Engineers in June over their “Waters of the United States,” or WOTUS, rule.

Erickson wrote in his order that the states are likely to succeed on their claim in part because “it appears likely that the EPA has violated its Congressional grant of authority in its promulgation of the Rule at issue.”

“On balance, the harms favor the states,” Erickson wrote. “The risk of irreparable harm to the states is both imminent and likely. More importantly, delaying the rule will cause the agencies no appreciable harm. Delaying implementation to allow a full and final resolution on the merits is in the best interests of the public.”

North Dakota Attorney General Wayne Stenehjem said he was “very pleased” by the order and emphasized that Erickson noted the states are likely to succeed in their lawsuit.

“Of course, this is only the first skirmish in a long battle. 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.”

Erickson’s ruling was widely applauded by other North Dakota politicians, including Gov. Jack Dalrymple and the state’s Congressional delegation.

Similar requests for preliminary injunctions were denied on jurisdictional grounds by federal judges in West Virginia on Wednesday and in Georgia on Thursday. But Stenehjem said the injunction granted in North Dakota applies to the EPA and Corps of Engineers “and isn’t limited just to the states that are participants in this lawsuit.”

The states claim the rule infringes on their sovereignty and will be costly and confusing to landowners, farmers, ranchers and local governments who will have to obtain federal permits or undergo federal review for uses affecting tributaries to major rivers and wetlands, ponds, lakes and ditches connected to those tributaries.

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.

Attorneys for the EPA and Corps say the Clean Water Act is already unclear and that the revisions will clear up confusion stemming from Supreme Court decisions in 2001 and 2006 on which streams and wetlands fall under federal authority.

Erickson acknowledged that implementation of the rule would provide increased certainty as to what constitutes jurisdictional waters because some people will be removed from the WOTUS definition, such as owners of an intermittent wetland more than 4,000 feet away from an established tributary.

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 10 cases collectively involve 71 plaintiffs, including a total of 31 states, a number of industry groups and a few private entities.

North Dakota is joined in the lawsuit by Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming and two New Mexico state agencies.

The states argue the rule will cause them “irreparable harm” in the form of unrecoverable financial losses. Erickson noted in his order that the rule will make North Dakota subject to jurisdictional studies for every proposed natural gas, oil, or water pipeline project.

“This will incur both direct losses, including vast expenditures to map and survey large portions of the state, and indirect losses such as lost tax revenue while projects are stalled pending mapping,” he wrote.

Wyoming also claims it will have to bear the costs of additional Clean Water Act certifications for reclamation and development projects, the judge noted.

“These losses are unrecoverable economic losses because there is neither an alternative source to replace the lost revenues nor a way to avoid the increased expenses,” he wrote. “The states will suffer irreparable harm in the absence of a preliminary injunction.”

Stenehjem said the district court case will likely take months but needn’t drag on for years, adding it “really isn’t that fact-specific, so we don’t have to do a whole lot of discovery and a major trial.”

But he said he anticipates the case “is one that could easily be headed to the Supreme Court.”

Mike Nowatzki

Mike Nowatzki reports for Forum News Service. He can be reached at (701) 255-5607.