Obama's Clean Water Act rule faces deepening opposition

A federal judge issued a temporary injunction blocking the Environmental Protection Agency from enforcing a new rule, just one day before the rule was set to take effect.

First Look

A federal judge in North Dakota has provided the stiffest challenge yet to a new rule from the Obama Administration that aims to protect ecologically-vital temporary waterways.

Last week, US District Judge Ralph Erickson in Fargo issued a temporary injunction to stop the Environmental Protection Agency and the Army Corps of Engineers from regulating the waterways under a reinterpretation of the Clean Water Act.

But the scope of the injunction remains unclear. While the EPA argues that it only applies to the 13 states that sued, the North Dakota attorney who filed the request on their behalf says it applies to all 50 states.

Judge Erickson gave lawyers until Tuesday afternoon to file briefs on the issue. His decision on Aug. 27 came just one day before the final rule was scheduled to go into effect.

Environmentalists say the fate of the new rule could have huge consequences for the future of temporary waterways. These small streams and tributaries that appear and disappear throughout the year provide drinking water for one in three Americans.

The EPA says the new rule is meant to clarify two “confusing and complex” decisions issued by the Supreme Court in 2001 and 2006. The agency says those decisions left 60 percent of the nation's streams and millions of acres of wetlands without clear federal protection. As The Christian Science Monitor’s Henry Gass reported in May:

The EPA, after reviewing more than 1,000 peer-reviewed studies on the issue, hopes the Clean Water Rule will finally put those issues to bed by clearly defining the characteristics of waterways that fall under the EPA’s jurisdiction.

Under the new rule any tributary showing “physical features of flowing water” would be included under head water protections, regardless of whether the tributary has flowing water year-round.

The Casper Star Tribune reports that the new rule would require businesses and landowners to obtain a permit before interfering with the waterways.

In practice, the rule means that developers can no longer pave over wetlands and oil companies can no longer dump pollution into streams unhindered, restoring Clean Water Act protections to more than half the nation's streams, supporters say.

But opponents call the rule an example of federal overreach and fear a steady uptick in federal regulation of nearly every stream and ditch on rural lands.

The EPA rule faces several other lawsuits from other states and farm and business groups. It also faces staunch opposition from congressional Republicans, who describe it as an overreach of the federal government.

This report includes material from the Associated Press.