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Clean Water Rule Halted in Arizona and Twelve Other States

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by Patrick Paul and Chris Colyer

On August 27th, the day before it was set to become final, a federal district court in North Dakota halted implementation of the United States Environmental Protection Agency’s and Army Corps of Engineers’ “Waters of The United States” rule.  North Dakota v. U.S. E.P.A., Civ. No. 3:15-cv-59.

Arizona and twelve other states sued to block the expansion of federal water protections under this proposed rule.  Homebuilders and others in the construction industry expressed concern that the proposed rule was too expansive and could be used to halt or delay construction and development projects.

Judge Ralph Erickson issued a preliminary injunction against implementation of the rule in favor of the thirteen plaintiff states finding, in part, that it suffered a fatal defect similar to one identified in the last seminal Supreme Court case on the issue, Rapanos v. United States, 547 U.S. 715 (2006); namely, allowing regulation of waters that bear no effect on the chemical, physical, and biological integrity of any navigable-in-fact water.  Judge Erickson also noted that the rule arbitrarily establishes distances from a navigable water that are subject to regulation and was not a “logical outgrowth” of the proposed rule.

Frustrated by a lack of access to a complete administrative record, Judge Erickson nevertheless concluded that what had been made available revealed “a process that is inexplicable, arbitrary, and devoid of a reason to process.”

The Arizona Homebuilders Association hailed the ruling as did Senator John McCain, who noted that he continued “to hear from a number of Arizona farmers, ranchers, and homebuilders who are alarmed that the rule will put their jobs under the thumb of the EPA.”

Arizona has an abundance of dry washes and other streams that only flow following precipitation which would face a new standard under the final rule. According to EPA, ninety-four percent of Arizona’s streams are ephemeral.

In an August 28th statement, EPA acknowledged the Court Order and—concurrent with the new rule becoming effective in thirty-seven other states—noted that it would continue to implement the prior rule in the following states: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.  In all other respects, the new rule became effective on August 28th, leaving businesses with a multi-state presence a regulatory quagmire in which a nationwide rule is not uniformly enforced.

EPA and the Army Corps of Engineers are considering next steps in the litigation, not only in North Dakota, but in many other jurisdictions.  In fact, litigation on the rule continues in earnest with the Sixth Circuit set to hear all petitions for review filed under Section 509(b) of the Clean Water Act.