Federal District Court Issues Preliminary Injunction in WOTUS Case
PIERRE, S.D – Attorney General Marty Jackley announced today that the District Court of North Dakota has issued a preliminary injunction in the Waters of the United States (WOTUS) case.
South Dakota joined 12 other states on August 11, 2015, challenging the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (CORPS).
“I remain concerned that the EPA and the CORPS are exceeding their authority granted by Congress. I am pleased the Federal District Court has agreed with the Attorneys General and has enjoined the EPA and the CORPS from enforcing a Rule that infringes upon our State authority. In short, the EPA and CORPS’ Rule will no longer take effect in South Dakota on August 28, 2015,” stated Jackley.
The States actively sought postponement of the impending implementation of the WOTUS Rule while the courts could fully address the states’ concerns. On June 29, 2015, thirteen states filed in federal district court in North Dakota asking the court to vacate the new rule and bar the EPA and the USACE from enforcing the new definition. Several other states have filed in their respective regions. The states contended the new definition of WOTUS violated provisions of the Clean Water Act (CWA), the National Environmental Policy Act (NEPA), and the United States Constitution. Then on July 30, 2015, 31 states requested that the EPA and USACE delay the effective date of the new Rule defining “Waters of the United States” under the CWA. The Rule is currently set to go into effect on August 28, 2015. The States requested the Rule not be implemented for a period of at least nine months in order to give the courts time to review the legal challenges to the Rule.
The effect of today’s preliminary injunction is to delay the Rules implementation until the Court has an opportunity to fully review the administrative record. The Court found that it was likely that the EPA violated its grant of authority when it promulgated the Rule and likely failed to comply with the requirements in the Administrative Procedures Act. Finally, the Court found the risk of harm to the States is great.
Courts in both West Virginia and Georgia found that jurisdiction lies with the Circuit Court of Appeals and has denied the preliminary injunctions. Other courts have stayed their proceedings pending a request by EPA to consolidate all of the cases before one court.