Federal Judge Thwarts Implementation of “Expansive” EPA Final Waters of U.S. Rule

A federal judge on Thursday halted implementation of the Clean Water Rule that is controversial for its broad definition of "Waters of the U.S." one day before it was to go into effect, saying it was likely that the Environmental Protection Agency (EPA) overstepped its authority when it promulgated the "exceptionally expansive" rule.

Judge Ralph Erickson of the U.S. District Court for the District of North Dakota granted a preliminary injunction requested by 13 states to stall the rule recently finalized by the EPA and the U.S. Army Corps of Engineers.

"If the exceptionally expansive view advocated by the government is adopted, it would encompass virtually all EPA actions under the Clean Water Act," he ruled.

The 13 states sued the agencies on the day the final rule was published in the Federal Register, June 29, arguing that it illegally put the federal government in charge of a majority of water and land resources in the U.S. The rule was to go into effect on Aug. 28.

The states are: North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, and Wyoming, along with the New Mexico Environment Department and New Mexico State Engineer.

In their complaint, the states said the rule's new definition of "Waters of the United States" (or WOTUS) violates provisions of the Clean Water Act, the National Environmental Policy Act (NEPA), and the U.S. Constitution. The states want the rule vacated and the EPA and Corps enjoined from enforcing a new definition of "Waters of the United States."

In his Aug. 27 decision, Judge Erickson predicted that the states are likely to succeed on the merits of claims that the EPA violated its grant of authority when it promulgated the rule, as well as that the rule is arbitrary and capricious. He also said the court was "unpersuaded" that the agencies had "not failed to comply with NEPA, mainly because it is hamstrung by the lack of administrative record."

The injunction merely stalls the rule's implementation. As North Dakota Attorney General Wayne Stenehjem noted, "The states' challenge to the rule still needs to be briefed, argued, and decided by the courts, but this injunction will maintain the status quo until the case is fully decided."

For the power sector, it is the first skirmish of many likely to come. Electric utilities have expressed concerns that water near plants, such as water drainage ditches and cooling ponds, may be considered U.S. waters.

According to the Nuclear Energy Institute, the rule will create "significant practical problems" for companies operating nuclear power plants and planning new facilities. "Industry's activities involving land and water depend upon a determination whether the waters involved are subject to federal jurisdiction.

Expanding the reach of Clean Water Act regulations, without just cause, would have a substantial impact on utilities' ability to operate and maintain existing facilities and infrastructure as well as finance and develop new projects," the industry group said in January.

-Sonal Patel, associate editor(@POWERmagazine, @sonalcpatel)

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