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North Dakota Judge Delays Expansion of U.S. Water Rules

A North Dakota federal district judge on Thursday blocked the Obama administration's proposed expansion of the scope of the federal Clean Water Act, calling the proposal from the U.S. Environmental Protection Agency (EPA) "exceptionally expansive." A preliminary injunction sought by 13 states was granted.

Following the joint release earlier in the year by EPA and the U.S. Army Corps of Engineers, North Dakota and a dozen other states joined a lawsuit and sought a preliminary injunction against the expansion of federal rules (see Shale DailyAug. 11). A hearing was held last Friday, and the expansion was set to be effective this Aug. 28.

Noting his court had original jurisdiction in this case, Ralph Erickson, chief district judge for the U.S. District Court for the District of North Dakota Southeastern Division, said that if "the exceptionally expansive view advocated by [EPA and the Army Corps] is adopted, it would encompass virtually all EPA actions under the Clean Water Act, something precisely contrary to part of the act [Section 1369(b)(1)(F)]."

Erickson concluded that EPA violated its congressionally granted authority and that it failed to comply with the Administrative Procedures Act (APA) requirements. In addition, the judge said he found other factors favoring the granting of the injunction.

Erickson said he was persuaded by the states' argument that they face "irreparable harm" from the proposed rule expansion, including direct and indirect monetary losses. "These losses are unrecoverable economic losses because there is neither an alternative source to replace the lost revenues nor a way to avoid the increased expenses," Erickson said.

Delaying the rule's effective date will cause no "appreciable harm" to the federal agencies, the judge concluded.

A "far broader segment of the general public" would benefit from the preliminary injunction, Erickson decided, saying it "would ensure that federal agencies do not extend their power beyond the express delegation from Congress. On the whole, the greater public interest favors issuance of the preliminary injunction."

North Dakota led attorneys general for eight of the 13 states in filing the motion, arguing that if the Clean Water Rule was to be effective as planned on Aug. 28, the revised definition of what constitutes "Waters of the United States will irreparably harm the states' sovereign interests and their state budgets during the pendency of this litigation."

The other litigants are 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. The request for a preliminary injunction was a more recent legal move in a lawsuit the states filed in June (see Shale Daily, June 30).

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