BISMARCK, N.D. – In an 18-page opinion issued late Thursday, Chief Judge Ralph Erickson of the U.S. District Court for North Dakota temporarily blocked the EPA’s expanded Waters of the United States (WOTUS) rule for 13 states, finding that since the new rule “would encompass virtually all EPA actions under the Clean Water Act,” and not just permitting procedures, the law gives original jurisdiction over the measure to the district courts.

The judge further added that “the states are likely to succeed on their claim” when the case is litigated, as “it appears likely that the EPA has violated the Congressional grant of authority in its promulgation of the rule at issue.” EPA may also have failed to comply with federal rulemaking statues, he said. The move granting the injunction followed a pair of opinions from district courts in other states that the suit needed to be addressed by an appellate court. The 13 states covered by the injunction are: North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, New Mexico, Nevada, South Dakota, and Wyoming.

Announced earlier this summer, the EPA and Army Corps of Engineers (Corps) finalized a rule redefining which bodies of water are protected under the federal Clean Water Act (CWA). Under the CWA, so-called “Waters of the United States” (WOTUS) receive heightened protection, and activities that could affect such waters may be subject to heightened permitting and environmental requirements. Specifically, by changing the definition of “WOTUS, this final rule is likely to impact Spill Prevention, Control and Countermeasure (SPCC) requirements, spill reporting obligations, construction permitting requirements, and effluent discharge monitoring and reporting requirements, among others. Earlier this month, NACS provided information for members on achieving compliance with the rule, which was set to go into effect today, August 28.

At the same time, Chief Judge Lisa G. Wood of the U.S. District Court for the Southern District of Georgia issued a six-page opinion, denting an injunction request by 11 states, saying jurisdiction over the case belongs in the U.S. Court of Appeals. That opinion mirrored conclusions reached Wednesday in a West Virginia federal court. Because of the conflicting rulings, it is not yet clear how the rule will ultimately be affected.