Federal District Court Blocks Water Rule

• The EPA and Army Corps of Engineers issued a final rule that expands federal jurisdiction under the Clean Water Act to non-navigable waters.

• The rule is another Washington power grab that has more to do with controlling land-use decisions than ensuring access to clean water.

• Yesterday, a federal district court issued a preliminary injunction against implementation of the rule, which was scheduled to begin today.

Yesterday, a federal district court in North Dakota issued a preliminary injunction against a new Obama administration rule that would extend federal Clean Water Act jurisdiction to irrigation ditches, isolated ponds, prairie potholes, and other non-navigable waters. In blocking the rule, the court stated that the “risk of irreparable harm to the states is both imminent and likely.” Thirteen states asked the court for immediate relief from the rule: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, New Mexico, Nevada, North Dakota, South Dakota, and Wyoming. The injunction blocks implementation of the rule in these states pending further judicial proceedings.

“The court finds that … the States are likely to succeed on their claim because (1) it appears likely that the EPA has violated its Congressional grant of authority in its promulgation of the Rule at issue, and (2) it appears likely the EPA failed to comply with [Administrative Procedure Act] requirements when promulgating the Rule. Additionally, the court finds the other factors relevant to the inquiry weigh in favor of an injunction.”

                 – U.S. District Court for the District of North Dakota, 8/27/2015

The rule was jointly issued by the Environmental Protection Agency and the Army Corps of Engineers on May 27 and was scheduled to take effect today. It expands the definition of “waters of the United States” for purposes of the Clean Water Act and represents another Washington power grab that has more to do with controlling land-use decisions than with ensuring access to clean water.

If implemented, the rule would force farmers, ranchers, families, home builders, manufacturers, state and local governments, water utilities, timber companies, energy producers, food and beverage businesses, railroads, and a host of other property owners to seek permission from federal bureaucrats before beginning any activity remotely related to water.

Expanding federal jurisdiction to non-navigable waters would expose Americans not only to an expensive and time-consuming application process for Clean Water Act permits, but potentially to ideologically driven mistreatment by regulators who manage that process. Under the Obama administration, federal agencies have routinely exploited permitting authorities to delay and block projects. They have also abused their enforcement authority in order to intimidate Americans.

The Senate is pushing back against the rule. On June 10, the Environment and Public Works Committee passed S.1140, the Federal Water Quality Protection Act, which directs the EPA and the Army Corps to issue a revised rule that protects traditional navigable water and wetlands from water pollution, while also protecting farmers, ranchers and private landowners. The legislation, which was introduced by Senator Barrasso and currently has 43 co-sponsors from both political parties, awaits action on the Senate floor.

On March 25, a bipartisan group of 59 Senators voted in favor of a non-binding budget amendment to limit the administration’s proposed expansion of federal jurisdiction under the Clean Water Act. On May 12, 261 members of the House, including 24 Democrats, voted in favor of legislation similar to S.1140 that would require the EPA and the Army Corps to withdraw the rule and write a new one.

The rule is the latest in a series of executive actions that the Obama administration has taken, and plans to take, that will constrain energy production and economic growth across the nation. Americans are already struggling under billions of dollars’ worth of new red tape since the president took office, and more is on the way.

Yesterday’s preliminary injunction is part of a trend in federal court rulings that rein in the Obama administration’s out-of-control regulatory agenda. Earlier this summer, the Supreme Court ruled in the case Michigan v. EPA that the agency acted unreasonably when writing the Mercury and Air Toxics Standards rule. It also demonstrated in the case King v. Burwell a willingness to narrow its deference to agency interpretations of federal statutes in the future. Last summer, the Supreme Court wrote in the case Utility Air Regulatory Group v. EPA: “When an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy,’ we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”

The dangerous new water rule erodes Americans’ property rights, economic opportunity, and standard of living. Republicans are working to support all farmers, ranchers, business owners, and other people who responsibly use our nation’s abundant natural resources to create economic opportunity.