pdf

Implementation of EPA’s New Clean Water Rule Halted in 13 States

September 1, 2015

 

Last week, a North Dakota federal judge blocked the implementation of a May 26, 2015 rule (“Rule”) that dramatically expands the definition of waters and wetlands that fall within the jurisdiction of the U.S. Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) under the Clean Water Act (“Act”). Thirteen states had sought a preliminary injunction to maintain the status quo while the courts consider the legality of the Rule and its new definition for (and exclusions as to) the “waters of the United States” under the Act. In issuing the injunction, U.S. District Judge Ralph Erickson stated that the thirteen states are likely to succeed on their claim because it appears that the EPA violated its Congressional grant of authority and failed to comply with Administrative Procedures Act requirements when promulgating the Rule. The judge’s ruling puts the new Rule on hold, at least for the thirteen states that brought the action.

In opposing the request for injunctive relief, EPA argued that jurisdiction is only proper in the courts of appeals. Judge Erickson disagreed, noting that jurisdiction in the courts of appeals is only appropriate where the EPA has approved or promulgated effluent-type limitations, whereas the Rule has “at best only an attenuated connection to any permitting process.”

In examining the states’ likelihood of success on the merits, the judge noted that the Rule runs afoul of the Supreme Court’s decision in Rapanos v. United States, 547 U.S. 715 (2006). In Rapanos, the Court rejected the concept that EPA could assert jurisdiction over any water “hydrologically connected” to a navigable-in-fact waterway (such as ephemeral streams and aquifers) no matter how remote in favor of the stipulation that a significant “nexus” must be shown. In this case, Judge Erickson found that “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.”

The Supreme Court has generally approved federal regulations for navigable waterways and for wetlands that physically abut such waterways, and rejected other efforts to regulate undefined “neighboring wetlands,” minute tributaries, man-made ditches and drains, and isolated water bodies with no hydrological connection to navigable waters. Those opposed to the Rule have argued that it would prohibit even minor alterations to wetlands and surface water including, for example, prohibiting a farmer from blocking a stream to make a pond for livestock, stopping a developer from filling in part of a wetland to put up a house, or preventing an oil pipeline from crossing a creek.

The court determined that it also appears likely that the EPA and the Corps overstepped their authority in promulgating the rule for failure to comply with the Administrative Procedure Act, particularly with regard to providing effective notice. “Nothing in the call for comment would have given notice to an interested person that the Rule could transmogrify from an ecologically and hydrologically based rule to one that finds itself based in geographic distance,” the court commented.

In response to the court’s decision, the EPA said the states that obtained the preliminary injunction (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming) are not subject to the new Rule and continue to be subject to the prior regulation. The EPA stated that it would continue to enforce the rule outside of the thirteen states in a move that angered many in the business and developer community.


This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Eric Rothenberg, an O'Melveny partner licensed to practice law in Missouri and New York, Kelly McTigue, an O'Melveny partner licensed to practice law in California, and Bob Nicksin, an O'Melveny counsel licensed to practice law in California contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

Portions of this communication may contain attorney advertising. Prior results do not guarantee a similar outcome. Please direct all inquiries regarding New York's Rules of Professional Conduct to O’Melveny & Myers LLP, Times Square Tower, 7 Times Square, New York, NY, 10036, Phone:+1-212-326-2000. © 2015 O'Melveny & Myers LLP. All Rights Reserved.