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WOTUS Takes a Hit in 13 States

A Federal District Court Judge granted a preliminary injunction that blocks the Waters of the United States regulation from taking effect on August 28. The Environmental Protection Agency quickly issued a statement that it would honor the injunction in the 13 states listed on that particular lawsuit, but “in all other [states] the rule is effective on Aug 28.”

The 13 states affected by the stay include: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.

A total of 30 states have sued the EPA over implementation of this regulation. Two other district courts considered preliminary injunctions earlier this week, but ultimately found the appropriate jurisdiction for these cases was the appellate courts and did not rule.

Judge Erikson disagreed with the two other district courts noting that the EPA’s process was “inexplicable, arbitrary and devoid of a reasoned process.” He also noted that a last-minute change in the final rule impacting the breadth of the agencies’ jurisdiction should have triggered a new round of public comment and that “the rule asserts jurisdiction over areas that are remote and intermittent waters. No evidence actually points to how these intermittent and remote wetlands have any nexus to a navigable-in-fact water.”

“This preliminary injunction absolutely supports what NSSGA, other industries, and the majority of the states have been saying all along that this rule is not based on sound science and is an unprecedented expansion of the EPA’s jurisdiction,” said Pam Whitted, senior vice president of legislative and regulatory affairs. “WOTUS will have a huge and immediate effect on industries across the country. NSSGA also is legally challenging the rule, and we hope that eventually the courts will find in in favor of the position of the states and businesses that ultimately will bear the effects of the rule.”