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EARL e-News: Update on New Clean Water Act Rule

Updates on Environmental, Administrative and Regulatory Law

August 28, 2015

On August 27, 2015, a federal District Court Judge in North Dakota issued a preliminary injunction blocking the implementation of the newly promulgated “Waters of the U.S. rule (WOTUS) (one day before the rule was to take effect). North Dakota et al v. U.S. Environmental Protection Agency et al (3:15-CV-00059 filed June 29, 2015).

In the North Dakota action thirteen (13) states filed suit to block the implementation of the new regulations. If the preliminary injunction is made permanent, the government can appeal the decision to the Court of Appeals for the 8th Circuit.

In a separate challenge by the State of Florida (and ten (10) other states), the federal District Court in Georgia denied a request for a preliminary injunction, ruling that only an appellate court can hear a challenge to a Clean Water Act regulation. State of Georgia v. McCarthy, et al (2:15-CV-00079 filed June 30, 2015).

Clearly, litigation on the WOTUS rule will continue for the foreseeable future. Until (and unless) the injunction is lifted the rule will remain on hold.