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Judge to settle WOTUS dispute

BISMARCK -- A judge is looking to settle a dispute over whether his ruling Thursday that blocked a new federal clean-water rule from taking effect applies nationwide or only to North Dakota and the dozen other states that successfully moved to st...

BISMARCK - A judge is looking to settle a dispute over whether his ruling Thursday that blocked a new federal clean-water rule from taking effect applies nationwide or only to North Dakota and the dozen other states that successfully moved to stop the rule.
U.S. District Court Judge Ralph Erickson issued a preliminary injunction Thursday to prevent the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers from implementing their “Waters of the United States” rule Friday.
But the EPA said in a statement after the ruling, “In all other respects, the rule is effective,” and that it planned to implement the rule in the other 37 states not involved in the lawsuit.
North Dakota Attorney General Wayne Stenehjem said the states maintain that the injunction should apply nationwide.
“My reading of the injunction is that it enjoins enforcement of the rule, and if the judge had wanted to craft it to apply only to the plaintiff states, he could have done that,” he said.
Erickson issued an order Friday to attorneys from both sides giving them until 5 p.m. Tuesday to file briefs addressing the issue of whether the injunction applies nationally or in a limited geographic area.
“There appears to be a dispute between the parties as to the breadth of the court’s order granting the motion for a preliminary injunction,” he wrote.
The states have criticized the rule as a federal power grab that infringes on state sovereignty by expanding federal jurisdiction to some minor waters historically regulated by the states. The EPA contends the rule is needed to clarify jurisdiction under the federal Clean Water Act and may actually reduce federal jurisdiction.
Erickson wrote in Thursday’s ruling that the states are likely to succeed on their claim in part because “it appears likely that the EPA has violated its Congressional grant of authority in its promulgation of the rule” and that the EPA likely failed to comply with administrative p rocedures in crafting the rule.
Federal judges in West Virginia and Georgia denied similar requests for preliminary injunctions last week, siding with the EPA and Corps in their argument that a federal appeals court should decide the matter.

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