By Paul Singarella, Chris Garrett, Andrea Hogan, Daniel Brunton, Garrett Jansma, John Heintz, Danny Aleshire and Lucas Quass
On August 27, 2015, the US District Court for the District of North Dakota issued a preliminary injunction against implementation of the Clean Water Rule (the Final Rule). The Final Rule defines Waters of the United States (WOTUS), a threshold term that determines the Clean Water Act’s (CWA) scope and application. The Final Rule was issued on May 27, 2015, by the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (Corps), with an effective date of August 28, 2015.
The Final Rule represented the first comprehensive effort since the 1980s to clarify through regulations the definition of WOTUS. In the Final Rule, EPA and the Corps expanded the definition of WOTUS in a manner that appears to assert jurisdiction over not only almost all waters and wetlands across the country, but also dry lands located between water bodies. Given the expansive scope of the Final Rule, it has been the subject of considerable controversy throughout the rulemaking and has been challenged in court by both states and industry.
In June 2015, North Dakota and 12 other states filed a lawsuit in the US District Court for the District of North Dakota against the federal government charging that the Final Rule is a threat to state sovereignty because it asserts federal jurisdiction over wetlands and waters that should be subject to state government control. The states claimed that the Final Rule is beyond the authority of the CWA and in violation of the Administrative Procedure Act (APA). In August 2015, the states sought a preliminary injunction against implementation of the Final Rule, claiming that the Final Rule is arbitrary and capricious and that the agencies had unlawfully expanded their authority to regulate land and water resources within their respective jurisdictions, thus violating the states’ sovereignty.
In the court’s decision granting the states’ request for a preliminary injunction, it called the Final Rule “exceptionally expansive” and “inexplicable, arbitrary and devoid of a reasoned process.” The court faulted several aspects of the Final Rule and held that the states sufficiently demonstrated that their claim has a likelihood of success on the merits and that states would suffer irreparable harm absent injunctive relief and thus, granted a preliminary injunction. Specifically, the court found that (1) the Final Rule is likely an overreach of federal authority beyond the scope of the CWA, and (2) EPA and Corps likely failed to comply with APA requirements when promulgating the Final Rule.
- The Rule is likely an overreach of federal authority beyond the scope of the CWA. Here, the court focused its analysis on whether the Final Rule meets the standard set forth in Justice Kennedy’s concurring opinion in Rapanos v. United States, 547 U.S. 715 (2006), which requires that there be a “significant nexus” between the water bodies sought to be regulated and navigable waters. The court found that the Final Rule likely fails to meet that standard and determined that the Final 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.” For example, the court noted that the broad definition of tributary in the Final Rule “allows for regulation of any area that has a trace amount of water so long as ‘the physical indicators of a bed and banks and an ordinary high water mark’ exist.” The court further stated that despite the agencies’ assertions that excluding “ditches and drains remedies the defect,” the definition of tributary nonetheless includes “vast numbers of waters that are unlikely to have a nexus to navigable waters within any reasonable understanding of the term.”
- The EPA and Corps likely failed to comply with APA requirements when promulgating the Final Rule. The court found the Final Rule likely fails to comply with the APA in two ways. First, the court found that the Final Rule is likely “arbitrary and capricious” in that the agencies failed to establish a rational connection or scientific basis between the facts found and the Final Rule. In particular, the court questioned the Final Rule’s jurisdiction over intermittent and remote wetlands and found that “[n]o evidence actually points to how these intermittent and remote wetlands have any nexus to a navigable-in-fact water.” In addition, the court found that the Final Rule “also arbitrarily establishes the distances from a navigable water that are subject to regulation” focusing on the 4,000-foot threshold from the high water mark of a water that is jurisdictional by rule, and the absence of scientific support before the court for that threshold. Second, the court found that the final Rule was not likely a “logical outgrowth” of the proposed rule—a requirement of the APA—based on the changes in the definition of “neighboring” between the proposed and Final Rule.
In addition to determining that the states had a fair chance of success on the merits, the court also found that, in the absence of a preliminary injunction, the states would suffer irreparable harm in the form of unrecoverable economic losses. On August 31, 2015, the court agreed to allow arguments over the scope of the preliminary injunction to determine “whether the injunction applies nationally or in a limited geographic area.” The parties were required to submit their briefs by September 1. In addition, the agencies have the option to appeal the District Court’s ruling within 60 days of the ruling.
For now, the EPA considers the Final Rule blocked only in the 13 states that are a party to the lawsuit (i.e., Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming). Following the ruling, the EPA issued a statement that the Final Rule will become effective in all other states. However, a number of other states and private parties have separately challenged the Final Rule in various federal lawsuits, including Georgia, West Virginia, Alabama, Florida, Kansas, Kentucky, South Carolina, Utah, Wisconsin, Oklahoma, Ohio, Michigan, Texas, Louisiana, Mississippi, the American Farm Bureau Federation, American Petroleum Institute, American Road and Transportation Builders Association, Leading Builders of America, National Alliance of Forest Owners, National Association of Home Builders, National Association of Manufacturers, National Mining Association, and Public Lands Council. The lawsuits filed by states and private parties have been consolidated into one lawsuit at the Court of Appeals for the Sixth Circuit in Cincinnati. Prior to consolidation, multiple state litigants had moved for injunctive relief in their lawsuits and all such motions have been stayed or dismissed, with the respective courts each ruling that they lacked jurisdiction. Thus far, the District Court of North Dakota is the only jurisdiction to have granted an injunction. It is possible that the states that have moved for preliminary injunctions to halt enforcement of the Final Rule will seek clarification that the injunction issued by the District Court of North Dakota applies nationwide.
 The other states joining the lawsuit were Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, South Dakota and Wyoming.
 North Dakota v. U.S. Environmental Protection Agency, et al., 2015 U.S. Dist. LEXIS 113831, *8, *13 (D.N.D. Aug. 27, 2015).
 Id. at *13-21.
 Id. at *13 (the court did so because the agencies “assert[ed] jurisdiction under Justice Kennedy’s concurrence” as opposed to the plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006)).
 Id. at *15.
 Id. at *15-16.
 Id. at *16.
 Id. at *17.
 Id. at *18-19 (“On the record before the court, it appears that the standard is the right standard because the Agencies say it is”).
 Order Setting Briefing Schedule, North Dakota v. U.S. Environmental Protection Agency, et al., Case No. 3:15-cv-00059-RRE-ARS (D.N.D. Aug. 28, 2015).
 See Notice by North Dakota re Order on Motion for Preliminary Injunction, Order on Motion for Hearing of Supplemental Information, North Dakota v. U.S. Environmental Protection Agency, et al., Case No. 3:15-cv-00059-RRE-ARS (D.N.D. Aug. 28, 2015); see also http://www2.epa.gov/cleanwaterrule/clean-water-rule-litigation-statement.
 See http://www2.epa.gov/cleanwaterrule/clean-water-rule-litigation-statement.
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