States Want Water Rule Stopped Nationwide

     FARGO, N.D. (CN) – Thirteen states that persuaded a federal judge to block an EPA rule expanding the definition of federal waters told the judge Tuesday that the injunction should apply nationwide.
     U.S. District Judge Ralph Erickson on Aug. 27 sided with 13 states that challenged a Clean Water Act rule expanding the definition of federal waters, calling it “inexplicable, arbitrary, and devoid of a reasoned process.”
     The rule was to take effect at the end of August, but Erickson preliminarily enjoined its enforcement in one of five lawsuits that a total of 31 states filed against the U.S. Environmental Protection Agency and the Army Corps of Engineers.
     Attorneys filed briefs Tuesday arguing whether the injunction should apply nationwide.
     The EPA said the injunction applies only to 13 states and that it began enforcing the rule in the other states on Friday.
     The 13 states, led by North Dakota, said it made no sense to have different rules in states that may share the same watershed.
     The rule is meant to clarify which waters are subject to federal jurisdiction under the Clean Water Act. It redefines Waters of the United States as all bodies of water, including those completely contained within a state, that at some point merge with federal waters.
     Within six weeks after the rule was announced in May, 31 states filed five lawsuits around the country, objecting to federal jurisdiction over wetlands, ponds and other water bodies previously assumed to be under states’ authority.
     Erickson found the new rule overly broad and unsupported by scientific evidence.
     “The definition of a tributary here includes vast numbers of waters that are unlikely to have a nexus to navigable waters within any reasonable understanding of the term,” he wrote.
     “The Rule asserts jurisdiction over waters that are remote and intermittent waters. No evidence actually points to how these intermittent and remote wetlands have any nexus to a navigable-in-fact water. The standard of arbitrary and capricious is met because the agencies have failed to establish a ‘rational connection between the facts found” and the Rule as it will be promulgated.'”
     Although Erickson conceded that the clarification could benefit public and improve the safety of the nation’s waters, this is not enough to outweigh the states’ concerns.
     “Once the Rule takes effect, the states will lose their sovereignty over intrastate waters that will then be subject to the scope of the Clean Water Act,” he ruled.
     “The risk of irreparable harm to the states is both imminent and likely. More importantly, delaying the Rule will cause the agencies no appreciable harm. Delaying implementation to allow a full and final resolution on the merits is in the best interests of the public.”
     Federal courts in West Virginia and Georgia have denied injunctions, sending the lawsuits to the Sixth Circuit. Other courts have stayed proceedings in response to an EPA request to consolidate the cases.
     The 13 states at issue in Erickson’s case are North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming and New Mexico.
     When Erickson issued the injunction, he gave the parties until Tuesday to file arguments on the “breadth of the court’s order.”

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