Judge rules Obama
administration water rule should be halted
Yahoo News 8/27/15
BISMARCK, N.D. (AP) — A
federal judge in North Dakota on Thursday blocked a new
Obama administration rule that would give the federal
government jurisdiction over some smaller waterways just
hours before it was set to go into effect.
U.S. District Judge Ralph Erickson in Fargo issued a
temporary injunction requested by North Dakota and 12 other
states halting the U.S. Environmental Protection Agency and
Army Corps of Engineers from regulating some small streams,
tributaries and wetlands under the Clean Water Act. The
rule, which has prompted fierce criticism from farmers among
others, was scheduled to take effect Friday.
North Dakota Attorney General Wayne Stenehjem, who filed the
injunction request, said his reading of the ruling was that
it applied to all 50 states, not just the 13 that sued. But
the EPA said in a statement that it applied only to the 13
and it would be enforced beginning Friday in all other
The 13 states exempted for now are Alaska, Arizona,
Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska,
Nevada, New Mexico, North Dakota, South Dakota and Wyoming.
Erickson, who was appointed by President George W. Bush in
2003, said the EPA had exceeded its authority in issuing the
"The risk of irreparable harm to the states is both imminent
and likely," Erickson said in granting the request from the
13 states. The judge said that among other things, the rule
would require "jurisdictional studies" of every proposed
natural gas, oil or water pipeline project in North Dakota,
a state which is at the center of an energy exploration
"While the exact amount of land that would be subject to the
increase is hotly disputed, the agencies admit to an
increase in control over those traditional state-regulated
waters of between 2.84 to 4.65 percent," the judge wrote.
The 13 states say the regulation is unnecessary and
infringes on their sovereignty. The federal government says
the new rule clarifies ambiguity in the law and actually
makes it easier for the states to manage some waterways
"This is a victory in the first skirmish, but it is only the
first," North Dakota's Stenehjem said in a statement. "There
is much more to do to prevent this widely unpopular rule
from ever taking effect."
The agriculture industry has been particularly concerned
about the regulation, saying that it could apply to drainage
ditches on farmland. The EPA and Army Corps said the only
ditches that would be covered under the rule are those that
look, act and function like tributaries and carry pollution
downstream. A tributary would be regulated if it shows
evidence of flowing water such as a bank or high water mark,
the EPA said.
The new rules would have forced landowners to get a permit
if they took steps that would pollute or destroy the
regulated waters connected to larger bodies of water
The judge said the rule appears to be too broad in some
cases. He said the definition of tributary, for example,
could include many waters that are unlikely to have a
significant connection to larger waters downstream. He also
said the rules are "arbitrary and capricious," and would
cover some waters that are "remote and intermittent."
For example, the judge said Wyoming would have to bear the
cost of issuing permits and has no way of avoiding the
increased expenses under the regulation.
State officials in North Dakota said the new rule will cost
the state millions of dollars and take away from more
Stenehjem — along with attorneys general and officials from
30 other states — wrote last month to the EPA and the Army
Corps asking that the law be postponed at least nine months.
Lawyers for the states said they heard nothing back from the
government, so they filed a request for the preliminary
The federal government said the request for an injunction
was better suited to be heard by the 6th U.S. Circuit Court
of Appeals rather than a federal judge, but Erickson
rejected that notion.
Associated Press writers Dave Kolpack in Fargo and Mary
Clare Jalonick in Washington contributed to this story