Judge blocks ‘Waters of U.S.’ rule | RecordCourier.com

Judge blocks ‘Waters of U.S.’ rule

Staff Reports
The East Fork of the Carson River is considered a navigable river. Under new rules published by the EPA, all tributaries and waters in the 100-year flood plain will also be subject to federal regulation.
Kurt Hildebrand |

An early court ruling has dealt a blow to the expansion of environmental rules to affect any body of water deemed a tributary to one regulated by the federal government.

The “Waters of the United States” regulations have been challenged by several states including Nevada.

Federal Chief District Judge Ralph Erickson granted a preliminary injunction against the Environmental Protection Agency and the Army Corps of Engineers against enforcing the regulations on Thursday.

Erickson ruled that the states have a chance of success on the merits of their challenge that the rules are arbitrary and capricious

“The agencies assert that any water that fits in the definition of a ‘tributary’ will as of necessity ‘significantly affect the chemical, physical and biological integrity of traditional navigable waters,” the ruling said. “…The claims made by the agencies appear to only apply to a subset within the broad definition of the rule. The rule asserts jurisdiction of waters that are remote and intermittent waters. No evidence actually points to how these intermittent and remote wetlands have any nexus to a navigable-in-fact water.”

The judge said a lack of a “rational connection between the facts found” and the rule resulted in his determination it was arbitrary and capricious.

“Today’s preliminary injunction, as requested by Nevada and other states, reasserts the principle that the EPA cannot issue lawless mandates,” said Laxalt. “This important order, at a minimum, delays implementation of an unwise, unjustifiable and burdensome rule, and protects Nevada’s landowners, farmers and developers from job losses and increased energy prices, until the final rule can be comprehensively fought in court. I will continue to defend our jobs and families from overreach by the federal government.”

In June 2015, the EPA issued a regulation that defined federally regulated waters so broadly that it could include even rain-filled ditches and seasonal streams. Nevadans making use of these waters, even on their own property, will likely face onerous bureaucratic regulations and criminal penalties for permit violations. Nevada’s state and local government—democratically responsive and experienced—could be displaced.

Along with twelve other states, Nevada filed suit challenging the rule in federal court in North Dakota. Today a judge in that court held that the EPA “likely” exceeded its authorized powers and ignored essential procedural requirements—and, as a result, the judge prohibited enforcement of the rule until the case’s merits are fully litigated. The court agreed with Nevada and the other states that the “risk of irreparable harm” was “imminent” and that halting the rule served the “best interests of the public.”