the fact that we probably have parties on both sides of the
issue that are not completely satisfied is probably an indicator that we’re on a fairly safe course here,” the senior DOS
official said.
Leaders from the Arctic Slope Regional Corp., Alaska’s
largest Native-owned business, placed an open letter welcoming Obama to the state in news outlets there on Aug. 31.
It urged him to strike a balance between responsible energy development and environmental stewardship within the
Arctic.
“As stewards of our Arctic homelands, we have a unique
and very important interest in ensuring that any development activities in the Arctic are carried out in a safe and responsible manner,” ASRC Chief Executive Rex Rock Sr. and
Chairman Crawford Patkotak said in the letter. “We are also
no strangers to oil and gas development. The industry has
operated safely in our backyard for over four decades producing more than 15 billion bbl of oil from the North Slope
in that time. With those barrels come jobs, security, and opportunity.”
WOTUS rule implementation
uncertain after conflicting
court decisions
Nick Snow
Washington Editor
The US Environmental Protection Agency and Army
Corps of Engineers began to implement their controversial Waters of the United States (WOTUS) rule in all but
13 states on Aug. 28 after federal district court judges in
North Dakota and West Virginia issued conflicting orders.
“Under the order issued by the District Court of North
Dakota, the parties that obtained the preliminary injunc-
tion are not subject to the new rule, and instead continue
to be subject to the prior regulation,” EPA said in a state-
ment e-mailed to OGJ. “In light of the order, EPA and the
Army Corps of Engineers will continue to implement the
prior regulation.”
EPA said in all other respects, the rule would become ef-
fective on Aug. 28. “The agencies are evaluating these orders
and considering next steps in the litigation,” EPA said.
States and several trade associations immediately protested the rule establishing federal control over domestic
bodies of water after EPA and the Corps jointly issued it
in late May (OGJ Online, May 28, 2015). Several sued to
block it.
Ralph R. Erickson, US District Court for North Dakota’s
chief judge, issued a preliminary injunction on Aug. 27 delaying scheduled implementation of the rule a day later in
Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South
Dakota, and Wyoming.
“The states here have demonstrated that they will face
irreparable harm in the absence of an injunction,” Er-
ickson wrote. “It is within the purview of the traditional
powers of the states to maintain their ‘traditional and pri-
mary power over land and water use.’ Once the rule takes
effect, the states will lose their sovereignty over intrastate
waters that will then be subject to the scope of the Clean
Water Act.”
But Judge Irene M. Keeley of US District Court for North-
ern West Virginia dismissed a challenge on Aug. 26 by
Clairsville, Ohio, coal producer Murray Energy Corp. to the
agencies’ argument that the federal district court in West
Virginia did not have jurisdiction.
Keeley’s ruling said jurisdiction lies within the Sixth Circuit US Court of Appeals in Cincinnati, where Murray also
sued to overturn the rule on July 1.
‘Regulatory overreach’
Federal lawmakers and groups opposing the rule focused on
the North Dakota court decision’s impact. “The US District
Court for North Dakota agreed with 13 states, who believe
the EPA’s [WOTUS] rule to be an unconstitutional regulatory overreach exceeding the authority Congress gave it to
create rules for the Clean Water Act,” US Senate Energy and
Natural Resources Committee member John Hoeven (R-ND)
said on Aug. 28.
“If implemented, it will have real impacts not only on
farmers and ranchers, but also on small businesses across
North Dakota and the nation,” he said. “That’s why we
worked to pass a provision in the Senate Interior Appropria-
tions bill in June that prohibits the EPA from implementing
the regulation.”
US House Oversight and Government Reform Committee
Chairman Jason Chaffetz (R-Utah) said, “Judge Erickson’s
ruling is a significant and rightful win for states’ rights. I am
pleased that the arbitrary and subjective guidelines imposed
by EPA’s WOTUS rule will no longer go into effect today.
This ruling is an important check on an administration that
continues to overreach in its authority. Such flawed policy
should never see the light of day.”
National Association of Manufacturers Senior Vice-Pres.
and General Counsel Linda Kelly said, “Manufacturers are
responsible stewards of our environment, and protecting our
nation’s waters will always be a priority, but we very much
agree with the US District Court in North Dakota that the
regulation from [EPA and the Corps] was developed through
‘a process that is inexplicable, arbitrary, and devoid of a rea-
soned process.’”
