On August 27, 2015, the US District Court for the District of North Dakota granted a motion for preliminary injunction to a coalition of 13 states (the States) attempting to block implementation of the Waters of the United States (WOTUS) Rule, promulgated by US EPA and the Army Corps of Engineers (the Corps) and set to go into effect the next day.  On September 4, 2015, however, in response to questions regarding the scope of the injunction, the district court clarified that the injunction would only apply to the 13 plaintiff States. As such, but for these States, WOTUS will continue to take effect in the rest of the US.

In the motion for preliminary injunction, the States argued that the Rule, which broadens the definition of waters regulated under the Clean Water Act, “provides sweeping changes to the jurisdictional reach of the Clean Water Act (‘CWA’), drastically altering the administration of water quality programs implemented by the States, EPA and the Corps.”  The court agreed, holding that US EPA likely violated its Congressional grant of authority and failed to comply with the requirements of the Administrative Procedure Act when it promulgated the WOTUS Rule.  The court explained that the purpose of the Clean Water Act is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”  Thus, in order to fall within the jurisdiction of the Act, the waters in question must in fact impact the Nation’s waters. This Rule, the court held, would impermissibly allow US EPA regulation of waters that do not bear any effect on the integrity of the Nations’ waters.

US EPA issued a statement explaining that it considers the district court’s order to apply only to the parties that sought and obtained the preliminary injunction. Thus, plaintiffs Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming are not subject to the new Rule and continue to be subject to the prior regulation. “In all other respects the rule is effective on August 28.”

In an August 28, 2015 Notice of Supplemental Information, the States complained that US EPA’s interpretation regarding the limited scope of the injunction is “contrary to, and in defiance of, the Court’s Order.”  The same day, the court issued an Order Setting Briefing Schedule for the parties to address the issue “of whether the injunction applies nationally or in a limited geographic area.”  Both sides submitted briefs on September 1, 2015 in support of their respective positions. The States argued that the district court has broad discretion to enjoin the WOTUS Rule application nationwide. However, US EPA and the Corps contend that the scope of the injunction should be limited to the irreparable harm identified by the plaintiff States; “an injunction should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.”

On September 4, 2015, the district court declined to extend the injunction beyond the 13 plaintiff States. The court reasoned that “respect for the decision making authority of the other courts who have ruled on this issue . . . [and] respect for the states who desire the implementation of the [WOTUS Rule],” demand that the court limit the exercise of its discretion. “Under these circumstances, the court declines to extend its decision beyond the entities that are actually parties in this litigation.”