‘Slow Boil' Forecast After Delay of Court's Water Ruling

By Amena H. Saiyid

Aug. 28 — States won't immediately feel the impact of the federal district court ruling that has blocked the clean water rule from taking effect in 13 states, according to associations representing state and interstate environment and water officials.

“I think we will slowly begin to see the confusion and questions develop—it will be more like a slow boil as landowners come in and request jurisdictional determinations,” Julia Anastasio, executive director and general counsel for the Association of Clean Water Administrators, told Bloomberg BNA Aug. 28.

Anastasio was discussing the Aug. 27 ruling by the U.S. District Court for the District of North Dakota, which issued a preliminary injunction against the Environmental Protection Agency and the U.S. Army Corps of Engineers to block implementation of the clean water rule in the 13 states.

The rule (RIN 2040-AF30), which sought to clarify which waters and wetlands fall under the Clean Water Act, was to take effect nationwide Aug. 28 (80 Fed. Reg 37,054).

The EPA said it would apply the injunction to the 13 states, where Anastasio said the 2008 guidance would apply, but that the new rule would apply in the remaining 37 states. Echoing the remarks made a day earlier by Ken Kopocis, EPA deputy assistant administrator for water, Anastasio said that “there will not be an immediate rush of jurisdictional determinations today but rather they will come over time as landowners request them.”

Alexandra Dunn, executive director and general counsel for the Environmental Council of the States, agreed with Anastasio that the “fractured implementation” of the final rule will result in confusion as “the Clean Water Act, and jurisdictional determinations under the Section 404 program, are made within states concerning specific water bodies and lands.”

“Now we have 13 state that for now will continue under the preexisting regulatory language and other states that will move ahead under the new rule,” Dunn told Bloomberg BNA Aug. 28.

Two Other Courts Dismissed Petitions 

The White House also weighed in on the ruling. Press secretary Josh Earnest told reporters that the Obama administration “strongly disagrees” with the ruling. At the same time, he reminded the press that two other federal courts had dismissed petitions seeking a similar injunction against the rule.

“So, I would actually say if we're going to sort of look to federal judges for an endorsement here, that twice as many judges have actually agreed with the administration than have agreed with our opponents,” Earnest said.

Dunn viewed the split ruling and subsequent split implementation approach as an opportunity for states to see if the new rule actually advances “more consistent and more timely” jurisdictional determinations as promised, as compared to the prior rule.

“Only actual application of the rule to real world waters can prove out whether the rule works as the administration says it intended,” Dunn said.

In the meantime, Earnest said the Justice Department is weighing all its options.

Ellen Steen, American Farm Bureau Federation general counsel, said the EPA is taking a “legally incorrect” position by restricting the district court ruling to just the 13 petitioning states.

“But it isn't surprising the agency would take that position,” Steen told Bloomberg BNA late Aug. 27. “They take many incorrect positions. And unfortunately for farmers and others whose activities may be regulated, it's impossible to know what courts will do—as the last two days have demonstrated. So, even with this injunction, the rule will create a great deal of uncertainty—starting tomorrow.”

EPA Expected to Seek Stay 

Vermont law professor Patrick Parenteau told Bloomberg BNA that he expects the EPA will seek an immediate stay from the U.S. Court of Appeal for the Eighth Circuit, which has jurisdiction over the federal court in North Dakota.

In asking the Eighth Circuit to either stay or overturn the district court ruling, Parenteau said the EPA will make the case that the split implementation will cause confusion.

Parenteau disagreed with the district court judge who ruled that states would suffer “irreparable harm” from the implementation of the clean water rule.

Richard Stoll, partner in the Washington D.C. office of Foley and Lardner LLP, described the three rulings to Bloomberg BNA as an “irreparable, holy mess.”

Stoll blamed Congress, saying it left the reach of the Clean Water Act “notoriously unclear.” Subsequent U.S. Supreme Court rulings rendered further confusion, and the EPA and the U.S. Army Corps of Engineers, which together issued the waters of the U.S. rule, responded by coming up with a rule that even the corps found “legally defective.”

Vast Record Exists 

Recently revealed corps memos had officials questioning whether the clean water rule was indeed legally defensible.

“So for today the Clean Water Act's reach is much more confined in 13 states, but who knows where we will be tomorrow or next month?” Stoll said. “This could take years to resolve, all because Congress left the Clean Water Act's reach so unclear and left the question of which court has jurisdiction to review so unclear.”

Steven Miano, a shareholder attorney with the Philadelphia-based Hangley Aronchick Segal Pudlin & Schiller, rued that the court based its decision on a very narrow record, while a vast record exists supporting the need for this rulemaking.

Miano also said it was most unfortunate that the court decided to not give any deference to the EPA at all. He said nowhere in the ruling does Judge Ralph Erickson ever discuss deference.

Erickson Appointed by Republican President 

But Parenteau wasn't surprised, pointing out that Judge Erickson was appointed by former President George W. Bush.

Members of Congress weighed in with their reactions to the North Dakota ruling, with Republicans lauding the district court decision and most Democrats decrying it.

“In deciding to halt the implementation of the Clean Water Rule, the federal court has imperiled the waters that feed the drinking supplies of 1 in 3 Americans,” said Sen. Ben Cardin (D-Md.), a senior member of the Senate Environment and Public Works Committee, in an Aug. 28 statement.

In contrast, Rep. Lamar Smith (R-Texas), chairman of the House Science, Space, and Technology Committee, took the opportunity to criticize the EPA for failing in its core mission to protect the environment.

“While the agency has been frantically working to regulate the trickle of small streams in Americans' backyards, the EPA has failed at its core mission to protect the environment and is responsible for a toxic spill that polluted waterways impacting at least three different states,” Smith said Aug. 27. “The Waters of the U.S. rule should be halted until EPA can clean up its act and get its priorities in order.”

—With assistance from Cheryl Bolen in Washington

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com