EPA Water Rule Challenge to Continue for 13 States

A federal court lifted a stay on a challenge to an EPA rule

A federal judge in North Dakota cleared the way for several states to challenge a rule that gives the federal government jurisdiction over water flowing within their borders.

The U.S. District Court for the District of North Dakota on March 23 lifted a stay of a case after the U.S. Supreme Court said federal district courts — and not circuit courts of appeals — are the proper venue to hear cases regarding the rule. The government argued that the stay should remain in place, since it plans to propose a new rule under the Trump administration that might render the existing one moot. To the court, however, those plans only count for wishful thinking.

The stay is the latest in a long line of legal thrusts and parries that have had the rule stalled in the courts since its planned promulgation date in 2015. Even before its history in the courts, the rule has pitted environmental groups against the oil and gas industry and states against the federal government.

The Waters of the U.S. rule was introduced to provide clarity about what waters are subject to federal regulatory jurisdiction under the Clean Water Act. But before it was promulgated, individual states brought challenges, claiming it interfered with their rights to regulate water within their borders, that the EPA and Army Corps of Engineers introduced the rule without following the Administrative Procedures Act and that the rule made “sweeping changes for the determination of CWA jurisdiction, drastically altering the administration of water quality programs.”

To read this story and other complete articles featured in the April 2, 2017 print edition of Law Week Colorado, copies are available for purchase online