Federal Court Halts Waters of the United States Rule

Aug 28 2015

Under the federal Clean Water Act, the United States Environmental Protection Agency (“EPA”) and Army Corps of Engineers have regulatory authority over “navigable waters,” defined as “waters of the United States.” Based on this, the EPA and Army Corps of Engineers adopted the "Waters of the United States" (WOTUS) Rule, which expanded the definition of waterways falling under federal jurisdiction to cover many types of waters traditionally under state authority. Practically speaking, this means any ponds, natural or manmade, on any property, public or private, within specified boundaries are now regulated by the EPA.  Types of waters potentially subject to EPA regulation include ditches, ponds, and streams that may only flow during or after heavy rains, but are usually dry, and to the 100 year flood plain which is likely dry 99 of the 100 years. The new WOTUS rule impacts all property owners, public and private, as well as all of Wisconsin’s industries, especially agriculture. The rule will be very burdensome for many land and business owners because it will require more permits, and in many cases, duplicative state and federal permits.


Several states, including Wisconsin, sued the EPA and Army Corps of Engineers in the Southern District of Georgia, claiming that the Rule's expansion of federal authority over waterways supplants the states’ constitutional authority to govern their own waters. In addition, nine other suits of substantially the same facts and claims were filed in seven different jurisdictions.


On Thursday, August 27, the United States District Court for the District of North Dakota issued an order and opinion enjoining the Rule from going into effect. According to the court, the "States are likely to succeed on their claim because (1) it appears likely that the EPA has violated its Congressional grant of authority in its promulgation of the Rule at issue, and (2) it appears likely the EPA failed to comply with [Administrative Procedure Act] requirements when promulgating the Rule."


On the same day, the United States District Court for the Southern District of Georgia issued an order denying a motion to enjoin the Rule. The court ruled it did not have jurisdiction. Wisconsin was a party to this case.


Immediately after North Dakota court's decision, the EPA issued a statement that the decision was limited to the 13 states that were party to that case, and the Rule would go into effect in the other remaining states. It is likely that the states challenging the rule not involved in the North Dakota case will seek clarification that the decision enjoined the Rule for all 50 states. Stay tuned. 


"There is well-established precedent that the federal court's order yesterday enjoining the rule applies to all 50 states, not just to the 13 states involved in that case," AG Schimel said. "We expect Wisconsin and the other states challenging the rule to seek clarification that the injunction issued by the district court in North Dakota applies nationwide."

Who governs these waters?