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Federal Appeals Court Issues Nationwide Injunction on Clean Water Rule

capitalThe Clean Water Rule, previously known as the Waters of the U.S. Rule (WOTUS), has been stayed nationwide in a ruling by the U.S. Court of Appeals for the Sixth Circuit. The October 9th ruling blocks the enforcement of the regulation as lawsuits regarding the Clean Water Rule are addressed by the court system. The ruling can be viewed here.

In late August, a federal judge in North Dakota issued an injunction that prevented the controversial Clean Water Rule developed by the U.S. Environmental Protection Agency (USEPA) and the U.S. Corps of Engineers (USACE) from being implemented in 13 states - Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming. The rule went into effect on August 28th in the remaining 37 States, until the nationwide injunction was announced.

In mid-October, the Judicial Panel on Multidistrict Litigation issued a unanimous order to deny the transfer of district court cases filed across the country to challenge the Clean Water Rule. USEPA and USACE had requested all of the district lawsuits be placed on hold while the Panel considered consolidating 14 separate lawsuits. North Dakota opposed the request, arguing that its case was the only one with a preliminary injunction, and the federal agencies hadn’t met their burden to justify the transfer. "We have a long way still to go but this is the state’s third consecutive victory on the route. We will continue to press the matter until the WOTUS rule is invalidated,” says Wayne Stenehjem, North Dakota's Attorney General.

Critics of the Clean Water Rule say it is contrary to the congressional intent of the Clean Water Act and it infringes on the ability of the States to regulate their own natural resources. USEPA and USACE issued its final Clean Water Rule in late May of 2015 with broad new definitions of the scope of “waters of the United States” that fall under the jurisdiction of the Clean Water Act. USEPA has repeatedly said the Clean Water Rule only applies to the types of waters that have historically been covered under the Clean Water Act, which does not include most ditches, groundwater, shallow subsurface flows, or tile drains.

If you have questions about how the Clean Water Rule could impact your facilities, planned projects, or existing programs, contact Jeff Hruby, AE2S Civil Practices Director, at Jeff.Hruby@ae2s.com or 701-221-0530.

If you have any questions concerning the content of this newsletter,
please contact Heather Syverson at 701-364-9111 or Heather.Syverson@ae2s.com.
 
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