ESWR Update: WOTUS Rule Blocked by Federal Judge in North Dakota

September 2015

In the week that the new Waters of the United States Rule (“WOTUS Rule”) was scheduled to take effect on August 28, 2015, three Federal District Courts issued rulings reaching opposite conclusions on the question of whether District Courts have jurisdiction to hear these cases: one court ruled it has jurisdiction and took the additional step of issuing a preliminary injunction against the rule; two courts dismissed challenges for lack of jurisdiction.  Several other challenges remain pending in both Federal District Courts and Courts of Appeal.

On August 27th, the District Court for North Dakota found it has jurisdiction to hear a challenge and ordered a preliminary injunction of the WOTUS Rule citing the likelihood of success for the plaintiffs in proving that EPA violated its Congressional grant of authority under the Clean Water Act and that it failed to comply with the Administrative Procedures Act.  North Dakota v. EPA, No. 3:15-cv-59 (N.D. Aug. 27, 2015).  The Court stated this case does not trigger the exclusive jurisdiction of the Federal Appeals Courts under Clean Water Act Section 1369 because it does not concern an “effluent limitation or other limitation” nor is it challenging the “issuing or denying [of] any permit.”  In a statement responding to this order, EPA said it will continue to implement the prior WOTUS rule in the states that were party to this lawsuit (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming).  In all other states, including California, EPA asserts that the new rule is effective.  The judge who issued the injunction in this case, Chief District Judge Ralph Erickson, has ordered the parties to submit briefs by September 1st on the reach of his injunction.

One day earlier, the District Court for the Northern District of West Virginia dismissed a challenge of the WOTUS Rule for lack of jurisdiction.  Murray Energy Corp. v. EPA, No. 1:15CV110 (Aug. 26, 2015).  Here, the Court relied on the “prevailing flexible approach” to jurisdiction under Section 1369 in finding that exclusive jurisdiction lies with the Federal Appeals Courts because the WOTUS rule is a “limitation” and will impact the plaintiff’s permitting requirements.  Although this action was dismissed by the District Court, this same group of plaintiffs had already filed a challenge in the Court of Appeals for the Fourth Circuit.  On August 27th, the District Court of the Southern District of Georgia also issued an order dismissing a similar challenge by eleven states for lack of jurisdiction.  Georgia v. McCarthy, No. CV 215-79 (Aug. 27, 2015).

We will be tracking developments regarding the WOTUS rule including how other Federal District Courts rule regarding jurisdiction and the merits of the challenges; how the 6th Circuit Court of Appeal will address the twelve petitions for review filed in various Federal Appeals Courts that have been consolidated for its review; and ultimately if this rule is reviewed by the U.S. Supreme Court.