A defiant Environmental Protection Agency on Friday put into effect controversial new water regulations, despite a federal judge's decision to place a temporary hold on the rule for fear it would harm states.
The EPA says it is interpreting Thursday's injunction as applying only to the states that sued in the North Dakota district court, according to a spokeswoman. The Clean Water Rule, also known as the Waters of the U.S. rule, goes into effect Friday as planned, except in the 13 states that filed the North Dakota lawsuit.
"The Clean Water Rule is fundamental to protecting and restoring the nation's water resources that are vital for our health, environment and economy," said Melissa Harrison, a spokeswoman for the agency. She says the EPA and the Army Corps of Engineers "have been preparing to implement the rule on the effective date of Aug. 28."
The rule has been a favorite target of the GOP, which argues it as a prime example of federal overreach that defies state sovereignty.
The rule increases EPA jurisdiction over ditches, tributaries and other small waterways, making farmers, ranchers and other land developers subject to federal enforcement actions under the Clean Water Act.
The circuit court's temporary hold on implementation of the water rule applies only in Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming, according to the EPA. All remaining 37 states will become subject to the new rule Friday.
"In all other respects, the rule is effective on Aug. 28," Harrison says.
U.S. District Court of North Dakota Chief Judge Ralph Erickson placed a temporary injunction against the agency late Thursday, which would delay the regulation from taking effect Friday.
"The risk of irreparable harm to the states is both imminent and likely," Erickson said in his decision favoring the 13 states that sued the EPA.
The federal judge's injunction does not stipulate that the action only apply to the 13 states in the suit. "On balance, the harms favor the states. The risk of irreparable harm to 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," Erickson said. The judge said the states' arguments against the rule have standing, and it can move forward to hear the case based on the merits. The injunction would give it more time to fully vet the merits of the case.
EPA says that's fine, but a host of states that sued in separate courts did not receive the same relief, with district court judges for Georgia and West Virginia deciding this week that the lawsuit would be best addressed by the U.S. Court of Appeals for the 6th Circuit.
Harrison said Erickson's decision pertains only to the 13 states in the suit he addressed. "Under the order issued by the District Court of North Dakota, the parties that obtained the preliminary injunction are not subject to the new rule, and instead continue to be subject to the prior regulation," the spokeswoman said.
Republican lawmakers in Congress said Erickson's injunction gives Congress time to work on a solution to the rule's overreach. "The court's decision to issue a temporary injunction is a victory in the first battle of a long war," said North Dakota Rep. Kevin Cramer.
"The injunction provides time for Congress to continue working toward a fix and for a complete judicial review of the legal merits of the rule," Cramer said.