IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NORTH DAKOTA SOUTHEASTERN DIVISIONStates of North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho,Missouri, Montana, Nebraska, Nevada,South Dakota, and Wyoming; New Mexico Environment Department; andNew Mexico State Engineer,Plaintiffs, vs.U.S. Environmental Protection Agency,Regina McCarthy in her officialcapacity as Administrator of the U.S.Environmental Protection Agency, U.S. Army Corps of Engineers, Jo EllenDarcy in her official capacity as Assistant Secretary of the Army (Civil Works),Defendants.Civil No. 3:15-cv-59
MEMORANDUM OPINION ANDORDER GRANTING PLAINTIFFS’MOTION FOR PRELIMINARY INJUNCTIONI.
S
UMMARY OF
D
ECISION
Original jurisdiction is vested in this court and not the court of appeals because the“Clean Water Rule: Definition of Waters of the United States,” jointly promulgated by theU.S. Environmental Protection Agency and U.S. Army Corps of Engineers, has at best only an attenuated connection to any permitting process. If the exceptionally expansive view advocated by the government is adopted, it would encompass virtually all EPA actionsunder the Clean Water Act, something precisely contrary to Section 1369(b)(1)(F)’s grantof jurisdiction. The court finds that under either standard – “substantial likelihood of success on the1
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merits” or “fair chance of success” – the States are likely to succeed on their claim because(1) it appears likely that the EPA has violated its Congressional grant of authority in itspromulgation of the Rule at issue, and (2) it appears likely the EPA failed to comply with APA requirements when promulgating the Rule. Additionally, the court finds the otherfactors relevant to the inquiry weigh in favor of an injunction.
II.
P
ROCEDURAL
B
ACKGROUND
On April 21, 2014, the United States Army Corps of Engineers and theEnvironmental Protection Agency (“EPA”) (collectively “the Agencies”) issued a proposedrule to change the definition of “Waters of the United States” under the Clean Water Act.Following a period for comment, the Agencies promulgated a final rule (“the Rule”) on June29, 2015, which defines waters of the United States. The Rule has an effective date of August 28, 2015. On June 29, 2015, twelve States
1
and the New Mexico Environment Department andthe New Mexico State Engineer (collectively “the States”) filed a complaint against the Agencies, the EPA Administrator in her official capacity, and the Assistant Secretary of the Army (Civil Works) in her official capacity.
2
On August 10, 2015, the States filed a motionfor a preliminary injunction.
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A hearing was held on the motion on August 21, 2015. Thecourt, having considered the entire record as now developed including evidence presentedat the hearing and the arguments of counsel, issues this memorandum opinion and order.
1
States of North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana,Nebraska, Nevada, South Dakota, and Wyoming.
2
Doc. #1.
3
Doc. #32.
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III.
A
NALYSIS
1.Jurisdiction
Title 33, of the United States Code, § 1369(b)(1)
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defines the circumstances under which the United States Courts of Appeals have exclusive jurisdiction over an action of theEPA Administrator. Implicated here are the provisions of subsections (b)(1)(E) and(b)(1)(F) of § 1369. Section 1369(b)(1)(E) posits jurisdiction in the courts of appeals wherethe Administrator has approved or promulgated “any effluent limitation or other limitationunder section 301, 302, 306, or 405, [33 USCS § 1311, 1312, 1316, or 1345]”. “Effluentlimitations” are defined by the act as “any restriction established by a state or the [EPA] onquantities, rates, and concentrations of chemical, physical, biological, and otherconstituents which are discharged from point sources into navigable waters.”
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The Rule itself imposes no “effluent limitation.” It merely redefines what constitutes“waters of the United States.”
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This is made plain by the specific language of the Rule itself,as it unequivocally states that it “imposes no enforceable duty on any state, local, or tribalgovernments, or the private sector, and does not contain regulatory requirements thatmight significantly or uniquely affect small governments.”
7
The Agencies’ claim that the Rule is an “other” limitation is equally unavailing. “[A]nagency action is [an ‘other] limitation’ within the meaning of section 509(b)(1)(E) if entities
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Alternately known as, and commonly referred to as, § 509(b)(1) of The Federal Water PollutionControl Act.
5
33 U.S.C. § 1362(11).
6
80 Fed. Reg. 37054.
7
80 Fed. Reg. 37102.
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