Wall Street Journal: Federal Judge Blocks New Obama Administration Water Rule
EPA says injunction only applies in 13 states that had sued to challenge the new regulation
By AMY HARDER and BRENT KENDALL
Updated Aug. 27, 2015 8:30 p.m. ET
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.
U.S. District Judge Ralph Erickson of North Dakota issued a preliminary injunction against implementation of the regulation, saying a group of 13 states was likely to succeed in their lawsuit challenging the Environmental Protection Agency regulation as unlawful.
The judge faulted several facets of the rule, both on its substance and the procedure the EPA followed in writing it. 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.
In coordination with the U.S. Army Corps of Engineers, the EPA in May issued the rule, which is estimated to put about 3% more waterways throughout the U.S. under new federal jurisdiction. That would require a federal permit to pollute those waters and could restrict access altogether. Major waterways, like most rivers and lakes, are already under protection of the Clean Water Act and aren’t affected by the rule.
Critics, including lawmakers and business and farming groups, say the rule amounts to a federal power grab of state rights.
An EPA spokeswoman said the rule is blocked only in the states that sought the injunction from the North Dakota court. These states are Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.
The North Dakota ruling comes in contrast to a separate decision on Thursday in Georgia, where a federal judge rejected a similar request by a different group of 11 states seeking to halt the EPA rule.
The EPA spokeswoman said the Army Corps and the EPA are “evaluating these orders and considering next steps in the litigation.” The agency has the option to ask a higher court to throw out the judge’s injunction. The water regulation still applies in the states that sought, but failed to block it in other courts, according to the EPA.
The EPA has said the rule is necessary to clarify which waters should fall under the protection of the federal Clean Water Act of 1972 after two Supreme Court rulings, in 2001 and 2006, called into question whether and to what extent 60% of U.S. waterways, especially streams and wetlands, should fall under federal jurisdiction.
Companies apply for permits under the Clean Water Act for a host of industrial activities, such as building roads, bridges and discharging of waste material like sewage. The Corps of Engineers, which issues Clean Water Act permits along with the EPA, says it approves tens of thousands of such permits a year. EPA officials say farming activity wouldn’t need a permit based on an existing exemption.
Tags: federal, water