The final Clean Water Rule redefining “Waters of the United States” was scheduled to go into effect August 28, 2015.  There have been several suits challenging the rule filed since the rule was finalized.  Among those actions include a consolidate action before the 6^th Circuit Court of Appeals in Ohio by Murray Energy Company and others.  There has been significant activity in the last 24 hours regarding the status and effectiveness of the rule in West Virginia.  At the conclusion of this alert, you will note that it is the continued intent of EPA to enforce the new rule in West Virginia.

Among the activity of last week included a ruling by Judge Irene Keeley in the Northern District of West Virginia regarding a separate complaint filed by Murray Energy Corporation in her court challenging the effectiveness of the WOTUS rule.  Judge Keeley ruled that the court would not extend jurisdiction to hear Murray’s challenge because of the existing consolidated cases before the Court of Appeals in Ohio.  Specifically, citing precedent from other cases decided by the 4^th Circuit Court of Appeals, within which West Virginia sits, she found that ruling on the current request for stay would frustrate “the congressional goal of ensuring prompt resolution of challenges to EPA’s actions. The jurisdictional scheme, which provides for consolidation of all such challenges in a single court of appeals, favors one decision on the merits.  By avoiding consolidation in a single circuit court, that scheme would be undermined by, as another court has referred to it, a ‘patchwork quilt’ of district court rulings.” Murray Energy Corp v. EPA, et al. 1:15 CV 110 (August 26, 2015).  (Citations omitted.)  She thus dismissed the action and any pending motions.

However, Judge Erickson Chief District Judge, District of North Dakota, came to a completely different conclusion when thirteen states, including the states of North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, and Wyoming and the New Mexico Environment Department and the New Mexico State Engineer (collectively “the States”) filed a complaint against the Agencies, the EPA Administrator in her official capacity, and the Assistant Secretary of the Army (Civil Works) in her official capacity and  filed a motion for a preliminary injunction.

Judge Erickson found he had jurisdiction in view of the expansiveness of the EPA action.  “If the exceptionally expansive view advocated by the government is adopted, it would encompass virtually all EPA actions under the Clean Water Act. It is difficult to imagine any action the EPA might take in the promulgation of a rule that is not either definitional or regulatory. This view of §1369(b)(1)(F)’s grant of jurisdiction would run precisely contrary to Congress’ intent in drafting the court of appeals jurisdictional provision as recognized in the Supreme Court in National Cotton Council of America v. U.S. E.P.A. The relationship between issuing or denying a permit and the Rule at issue is tangential to issuance or denial of a permit–a classic red herring. Under these circumstances, original jurisdiction lies in this court and not the court of appeals.” State of North Dakota, et al v. USEPA et al.  3:15 cv 59 (August 27, 2015).

Judge Erickson granted a preliminary injunction of Clean Water Rule applicable to the states of North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming and New Mexico based on his analysis of “the Dataphase factors, the court weighs (1) the threat of irreparable harm to the movant; (2) the balance of harms; (3) the movant’s likelihood of success on the merits; and (4) the public interest.”

Notably Judge Erickson found:

• The standard of arbitrary and capricious is met because the Agencies have failed to establish a “rational connection between the facts found” and the Rule as it will be promulgated. The Rule also arbitrarily establishes the distances from a navigable water that are subject to regulation. 

• Once again, the court has reviewed all of the information available to it and is unable to determine the scientific basis for the 4,000 feet standard. Based on the evidence in the record, the distance from the high water mark bears no connection to the relevant scientific data purported to support this because any water that is 4,001 feet away from the high water mark cannot be considered “similarly situated” for purposes of 33 C.F.R. § 328.3(a)(8). While a “bright line” test is not in itself arbitrary, the Rule must be supported by some evidence why a 4,000 foot standard is scientifically supportable. the record before the court, it appears that the standard is the right standard because the Agencies say it is. Under these circumstances the Rule setting the 4,000 feet standard is likely arbitrary and capricious.

• The States are likely to succeed on the merits of their claim that the EPA has violated its grant of authority in its promulgation of the Rule. 

• The definition of “neighboring” under the final rule is not likely a logical outgrowth of its definition in the proposed rule. The final rule greatly expanded the definition of “neighboring” such that an interested person would not recognize the promulgated Rule as a logical outgrowth of the proposed rule.

• The States here have demonstrated that they will face irreparable harm in the absence of a preliminary injunction. It is within the purview of the traditional powers of the States to maintain their “traditional and primary power over land and water use.” Once the Rule takes effect, the States will lose their sovereignty over intrastate waters that will then be subject to the scope of the Clean Water Act.

• On balance, the harms favor the States. The risk of irreparable harm to the States is both imminent and likely. More importantly delaying the Rule will cause the Agencies no appreciable harm. Delaying implementation to allow a full and final resolution on the merits is in the best interests of the public.

• The States have established that the Dataphase factors weigh in favor of injunctive relief. Their motion for a preliminary injunction, enjoining Fed. Reg. 37,054-127, jointly promulgated by the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers, is GRANTED.

However, based on reporting from The Hill, the Obama Administration has announced that it will continue to enforce the ruling in all but the 13 states that requested the injunction.   Thus the rule will be applicable in West Virginia unless and until a new action is filed and the matter is re-argued.  This is possible as the action before Judge Keeley was dismissed without prejudice.  Copies of the decisions are available here.