By Todd Neeley
DTN Staff Reporter
OMAHA (DTN) -- With the clock ticking on the implementation of the waters of the United States rule, 13 states have asked a federal judge to issue an injunction stopping the U.S. Environmental Protection Agency from implementing the rule on Aug. 28.
The states already have sued EPA in attempt to stop the rule, which is one of several court actions filed since the agency issued the final rule this summer.
Attorneys general in North Dakota, Nebraska, Wyoming, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nevada, South Dakota and New Mexico, filed the request for an injunction this week in the U.S. District Court for the District of North Dakota.
"The WOTUS rule, which is set to go into effect on Aug. 28, 2015, provides sweeping changes to the jurisdictional reach of Clean Water Act, drastically altering the administration of water quality programs implemented by the states, EPA, and the Corps," the states said in their motion.
"Through the rule, the agencies assert the authority to regulate land and water resources in the states, thereby infringing upon the states' sovereign and economic interests. If it is allowed to go into effect, the WOTUS rule will irreparably harm the states' sovereign interests and their state budgets during the pendency of this litigation. Moreover, the states are likely to prevail on the merits of their challenge because the WOTUS rule exceeds the federal government's constitutional and statutory authority and violates the procedural mandates of the Administrative Procedures Act, and the National Environmental Policy Act."
The states had asked the EPA for a delay in a letter to EPA Administrator Gina McCarthy in July. The agency has not responded to that request, according to court documents.
The states have asked the court for a hearing on the motion during the week of Aug. 24.
In a memorandum filed with the court in support of the motion, the states cite concerns raised by the U.S. Army Corps of Engineers in a number of internal memos made public in recent weeks, as reason for an injunction.
"Indeed, Corps staff acknowledges that: 'It will be difficult, if not impossible, to persuade the federal courts that the implicit, effective determination that millions of acres of truly isolated waters (which have no shallow or confined surface connection to the tributary system of the navigable or interstate waters) do in fact have a significant nexus with navigable or interstate waters,'" the states said in the memorandum.
"An injunction is appropriate here because implementation of the WOTUS Rule will drastically reconfigure the landscape of federal/state cooperation in implementing the CWA and impermissibly infringe on the states' sovereign authority to regulate land and water use within their borders. In contrast, the agencies have not, and cannot, demonstrate any compelling reason that implementation of the WOTUS Rule must occur on Aug. 28, 2015."
In a news release this week, North Dakota Attorney General Wayne Stenehjem said the rule takes power away from the states and creates uncertainty for farmers and ranchers.
"The rule is perhaps the most controversial and widely objectionable rule that would usurp state and local control over vast reaches of water in North Dakota and across the nation," he said. "It is an unnecessary and unlawful power grab by the federal government that will do nothing to increase water quality in North Dakota. It will only burden landowners, ranchers and farmers."
Read the motion for an injunction here, http://tinyurl.com/…
Todd Neeley can be reached at todd.neeley@dtn.com
Follow him on Twitter @toddneeleyDTN
(AG/SK)
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