North Dakota Judge Limits Water Rule Injunction to 13 States


On September 4, a federal judge in North Dakota clarified his August 27 decision blocking the implementation of the EPA and the U.S. Army Corps of Engineers’ Water of the United States rule, which went into effect August 28. He refused to impose a nationwide injunction on the U.S. Environmental Protection Agency’s rule clarifying the scope of the Clean Water Act.

Thus, the injunction only impacts the thirteen states that filed for it: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.

Most other cases have been consolidated into one lawsuit at the Court of Appeals for the Sixth Circuit in Cincinnati. Multiple litigants had requested injunctions in their lawsuits, and most had been dismissed and deferred to the Sixth Circuit.

Congress returns on Tuesday, Sept. 8, which means there is an opportunity to pass S. 1140, which if passed, and signed into law by President Obama, would require EPA to rewrite many aspects of the rule including definitions of adjacency, significant nexus, tributaries and what constitutes a ditch.

In the meantime, NALP is continuing to push for relief from Congress. Thanks to everyone who took the time to call their Senators in support of Federal Clean Water Protection Act (S.1140). There are presently 43 cosponsors of the bill with some democrats signing on. The Senate leadership has said that it will not bring the Federal Clean Water Protection Act (S. 1140) to the Senate floor unless there are 60 confirmed votes for the measure.