Federal judge blocks Obama’s water rule
By Timothy Cama - 08/27/15 05:30 PM EDT
A federal judge in North Dakota acted late on Thursday to block the Obama administration’s controversial water pollution rule, hours before it was due to take effect.
Judge Ralph Erickson of the District Court for the District of North Dakota found that the 13 states suing to block the rule met the conditions necessary for a preliminary injunction, including that they would likely be harmed if courts didn't act and that they are likely to succeed when their underlying lawsuit against the rule is decided.
The decision is a major roadblock for the Environmental Protection Agency (EPA) and the Army Corps of Engineers, who were planning on Friday to begin enforcing the Waters of the United States rule, expanding federal jurisdiction over small waterways, like streams and wetlands.
But the Obama administration says it will largely enforce the regulation as planned, arguing that the Thursday decision only applies to the 13 states that requested the injunction.
“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,” Erickson wrote in his order.
“While the exact amount of land that would be subject to the increase is hotly disputed, the agencies admit to an increase in control over those traditional state-regulated waters of between 2.84 to 4.65 percent. Immediately upon the rule taking effect, the rule will irreparably diminish the states’ power over their waters,” he continued, calling the Obama administration's interpretation of its jurisdiction "exceptionally expansive."
The states and the federal government argued over how to judge the likelihood that opponents of the rule would win their case. But Erickson decided that the regulation is not likely to stand up to full court consideration.
In a statement shortly after the ruling, the EPA was defiant and said that the injunction only applies in the 13 states that filed for it: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.
“In all other respects, the rule is effective on August 28,” EPA Press Secretary Melissa Harrison said in the statement. “The agencies are evaluating these orders and considering next steps in the litigation.”
The EPA’s interpretation appears to conflict with responses from most stakeholders, lawmakers and others.
The water rule quickly became one of the most controversial regulations from Obama’s EPA, opposed by most states and many business, agriculture and development interests, among others.
They argue that the regulation greatly expands the federal government’s authority over water and land.
The Obama administration says the rule is necessary to protect small waterways from pollution or harm, as called for under the Clean Water Act.
As a preliminary injunction, Erickson’s ruling is designed only to last as long as the litigation persists, and can be overturned.
The 13 states, led by North Dakota, are participating in just one of 10 lawsuits against the water rule. In total, 29 states, along with business interests representing energy, developers, farmers and others, are suing.
The cases have been consolidated into one lawsuit at the Court of Appeals for the Sixth Circuit in Cincinnati, but Erickson argued that he could still issue his injunction. Multiple litigants had requested injunctions in their lawsuits, and most had been dismissed and deferred to the Sixth Circuit.
On Wednesday, a federal judge in West Virginia declined to block the rule. Shortly after Erickson's decision in North Dakota, Judge Lisa Godbey Wood in the District Court for the Southern District of Georgia also declined a plea from 11 states to block the rule, saying she lacked jurisdiction.
Congressional Republicans and their allies applauded the injunction.
“The judge’s decision to block the rule — which was challenged by 13 states — is encouraging, especially as EPA’s credibility has been questioned in the past month,” said Julia Slingsby, spokeswoman for House Natural Resources Committee Chairman Rob Bishop (R-Utah). “The EPA needs to be stopped before it does more harm to our nation’s precious water resources.”
“A federal court threw a giant wrench into the EPA and Army Corps’s plan to radically expand their power,” said Dan Danner, head of the National Federation for Independent Businesses, which filed one of the lawsuits.
“The agencies ignored the impact of their actions on small business and ignored prior Supreme Court decisions.”
The League of Conservation Voters sharply criticized the decision.
“This is a terrible decision for the 1 in 3 Americans who have already been waiting too long for these vital protections for their drinking water,” said Madeleine Foote, the group’s legislative representative.
“The District Court for North Dakota’s decision puts the interests of big polluters over people in need of clean water,” she said.
This story was updated at 7:23 p.m.
http://thehill.com/policy/energy-environment/252140-judge-blocks-obamas-water-rule 
