A North Dakota U.S. district court judge on Thursday approved a preliminary injunction against the Waters of the U.S. regulation, blocking the rule from taking effect in the 13 states that filed the lawsuit.
The rule outlines what waters are "waters of the United States" and can be regulated under the Clean Water Act. It was scheduled to take effect Aug. 28, though some states felt the regulation expanded federal jurisdiction over streams, wetlands and in some cases, ditches.
Those filing the suit included: North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming and New Mexico. While other states also filed complaints about the rule, EPA said it plans to enforce the WOTUS regulation on the states not covered by the injunction.
Several other WOTUS lawsuits have been filed, including one in West Virginia, where the judge declined to block the rule on Wednesday, according to a report in The Hill. In another suit Thursday, a Georgia District Court judge declined to rule in a case with 11 states as plaintiffs, saying she lacked jurisdiction.
In all, there are 10 lawsuits against WOTUS representing 29 states, business interests, farmers and groups, the report said.
Water rule concerns
The rule has received criticism from farm groups concerned that it creates more ambiguity in the Clean Water Act, and that it may impede agricultural activities, requiring additional permitting and creating confusion.
A vocal opponent of the WOTUS regulation, the National Cattlemen's Beef Association, spoke out against the rule Friday. NCBA said that the U.S. EPA, which is responsible for the rule, has ignored the concerns of farmers, ranchers and landowners across the country, "to the point of calling the concerns of cattle producers ludicrous."
NCBA said also that the U.S. Army Corps of Engineers, which co-proposed the rule with EPA, also shared concerns about the rule. That assertion is based on internal memos released in early August that indicated Army Corps officials were uncertain that the rule could hold up in court.
The Association said timeline is also a concern; six months after receiving one million comments, EPA moved quickly to finalize the rule. That pace is "a clear indication there was no intention of considering public comment or stakeholder input," NCBA said.
National Corn Growers President Chip Bowling agreed Friday. "From the beginning, we have asked for a rule that provides farmers with clarity and certainty about their responsibilities under the Clean Water Act. Instead, what we got was less clarity and less certainty – along with more paperwork, more permits, and more hassle."
In another hit to the rule, allegations also have surfaced that the EPA engaged in improper lobbying to create public support for the regulation. The Office of the Inspector General has been asked to investigate.
"We are particularly concerned that the most essential and democratic component of the rulemaking, the public notice and comment process, was abused and corrupted in a way that drowned out opposition to help justify the Agency's actions," read a letter, sent in early August by about 100 legislators to the OIG.
Legislators also have shared concerns about the WOTUS rule, passing legislation out of the House with a 261-155 vote that would withdraw the rule and call for a re-write.
North Dakota Democrat Sen. Heidi Heitkamp, along with a handful of co-sponsors, has moved forward a bill that also would withdraw WOTUS. That legislation was approved by the Senate Committee on Environment and Public Works, but has not been considered by the full Senate.
Heitkamp praised the decision of the N.D. judge Thursday. "Farmers across North Dakota and the nation deserve better than the sweeping federal rules regulating possibly every pothole on their land – they deserve certainty, and they deserve to be heard before any rule goes into effect," she said.