EPA: There’s a hole in my bucket

By Wally Irvin | October 14, 2015

14141829439_45eff23f6a_bIn May, the Environmental Protection Agency (EPA) issued the “Waters of the United States” rule, which expanded the scope of federal regulation over water and land use.  Thirteen states joined together in a lawsuit filed in North Dakota asserting the new rule threatened state sovereignty because EPA claimed jurisdiction over wetlands and waters that were subject to state regulation and control.  Two similar suits by other states had previously been dismissed.  However, on August 27, a North Dakota federal judge issued an injunction, preventing the rule from going into effect in Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.  Obviously, the lack of a rule that applies uniformly across the United States creates uncertainty regarding applicability and enforceability of the EPA’s future actions.  The judge found  “the risk of irreparable harm to the States is both imminent and likely.”  The court also cited memos from the United States Army Corps of Engineers to EPA that detailed concerns in the rule while also finding serious flaws.

Construction industry stakeholders opposed the rule, believing the rule imposed increased costs and unnecessary delays on construction projects caused by a more extensive and expensive permitting process.  Importantly, although the judge’s ruling prevented EPA’s new rule from going into effect in those affected states, only time will tell whether EPA will ultimately be required to address the states’ concerns and patch the holes the judge found in the new rule.

Photo: Philip Hartland

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