District Judge Grants Preliminary Injunction to Halt EPA “WOTUS” Rule

On August 27, 2015, a North Dakota Federal District Court Judge granted a preliminary injunction to halt the implementation of EPA and Army Corps of Engineers’ new rule expanding the definition of “waters of the United States,” which was slated to take effect August 28, 2015. The action was brought by the states of North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, and Wyoming as well as the New Mexico Environment Department and New Mexico State Engineer and is one of many similar actions across the country challenging the new rule. The North Dakota Judge reasoned that as Justice Kennedy warned against an overly expansive definition of WOTUS that could regulate ditches and drains, “[t]he Rule allows EPA regulation of waters that do not bear any effect on the ‘chemical, physical, and biological integrity’ of any navigable-in-fact water.” Within hours of that ruling, EPA responded that it intends to move forward with the new rule in all states not party to this injunction, creating further uncertainty across the US as to whether the new rule applies. This creates a paradox in that landowners in New Mexico may be regulated under a different standard than landowners in Texas. Read the complete opinion here.