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EPA Pushes Its New Water Rule in States Unaffected by Court Injunction

The Obama administration's proposed expansion of the scope of the federal Clean Water Act went into effect last Friday in the 37 states not covered by a North Dakota federal district judge's preliminary injunction against the regulation, the U.S. Environmental Protection Agency (EPA) indicated.

Parties to the North Dakota federal judge's injunction (see Shale Daily, Aug. 28) -- including the 13 states from Alaska to Wyoming that sought the injunction -- "are not subject to the new rule, and instead continue to be subject to the prior regulation," a Washington, DC-based EPA spokesperson said. EPA and the Army Corps of Engineers will continue to implement the prior regulations, he said.

"In all other respects, the rule [was] effective [last Friday]. The [federal] agencies are evaluating these [court] orders and considering next steps in the litigation."

There have been two other federal district court rulings since the new water rule was published earlier this summer in the Federal Register. U.S. district courts in Georgia and West Virginia agreed with the two federal agencies that legal challenges to the new rule could only be brought in the U.S. Court of Appeals for the 6th Circuit, and therefore in those two cases, rejected the requests for preliminary injunctions.

U.S. District Judge Ralph Erickson in North Dakota saw it differently, rejecting the appeals court argument and granting the preliminary injunction now in effect in Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.

The EPA spokesperson said as the federal agencies implement the Clean  Water Rule they are taking what he called "additional steps" to increase transparency, responses to information requests and streamlining of permitting.

"EPA and the U.S. Army Corps are ensuring that waters protected under the Clean Water Act are more precisely defined, more predictable, easier for businesses and industry to understand, and consistent with the law and the latest science," the EPA spokesperson said.

In the meantime, other lawsuits to block the new rule have been filed around the nation, and in both houses of Congress there are bipartisan efforts to pass legislation to block the new water rule or force the EPA to withdraw the rule and rewrite it. President Obama has proposed to veto any such legislation.

Following the joint release earlier in the year by EPA and the U.S. Army Corps, North Dakota and a dozen other states joined a lawsuit and sought a preliminary injunction against the expansion of federal clean water rules (see Shale Daily, Aug. 11). 

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