North Dakota Federal Judge Blocks Waters of the US!


WASHINGTON, D.C. – Congressman Kevin Cramer released the following statement on the preliminary injunction issued today on the “Waters of the United States” (WOTUS) Rule.  Thirteen states, including North Dakota, sued to delay the effective date of the Rule. 


“The court's decision to issue a temporary injunction is a victory in the first battle of a long war. North Dakota landowners and energy workers and their peers around the country will be temporarily spared the devastating consequences of an onerous rule. This is appropriate, given the judicial history of this issue and its impact on states and property rights. 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.”


View Judge Ralph Erickson’s ruling here.


Since 2001, the United States Supreme Court (SCOTUS) has ruled twice against the EPA’s interpretation of the Rule.  In both the 2001 and 2006 cases, a plurality of the Court ruled against the Environmental Protection Agency (EPA). 


On May 12 , the House passed H.R. 1732, the Regulatory Integrity Protection Act of 2015. The bill was co-sponsored by Congressman Cramer.  It gives the EPA and the U. S. Army Corps of Engineers (Corps) 30 days to withdraw the current rule which defines WOTUS under the Clean Water Act, and charges them with developing a new rule. 

On May 1, the House passed H.R. 2028, the 2016 Energy and Water Appropriations Act, which included language to prevent the Corps from spending any funds to implement the WOTUS Rule. Both pieces of legislation are awaiting action by the U.S. Senate

Continued Congressional oversight of the EPA on this issue exposed memos from the Corps to the EPA showing the Agency appeared to manipulate the Corps’ data to support the EPA’s implementation of the Rule.  These memos showed the concerns raised by Corps staff to Jo-Ellen Darcy, assistant secretary of the Army for Civil Works.


The Corps staff argued the economic analysis and technical support document prepared by the EPA for the rule “are flawed in multiple respects,” including applying Corps data out of context and mixing terminology and data. “In the Corps’ judgement, the documents contain numerous inappropriate assumptions with no connection to the data provided, misapplied data, analytical deficiencies and logical inconsistencies,” the memo said.  The documents obtained can be viewed here.


Questions have been raised concerning the efforts the EPA undertook to generate positive comments during the WOTUS Rule comment period. An in-depth investigative report published by The New York Times on May 18 exposed the Agency’s efforts to solicit positive comments for the proposed rule, possibly violating federal lobbying laws.  Click here to read the full story


The EPA and Corps appeared to cut corners in the drafting of the WOTUS Rule by failing to comply with the Regulatory Flexibility Act (RFA).  The Act required the EPA to study the effect the Rule would have on small business and if it is determined the impacts are significant, the EPA needed to take the impact into account and study less burdensome alternatives and regulations.  


In 2014, the Office of Advocacy of the U.S. Small Business Administration (SBA) stated the EPA and Corps failed to comply with the RFA and improperly certified the proposed WOTUS Rule. The SBA Office of Advocacy recommended the EPA withdraw the rule and the EPA conduct a Small Business Advocacy Review panel before proceeding any further with this rulemaking.  The entire letter from the Office of Advocacy can be seen here. 



Source:  Congressman Kevin Cramer's Office

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