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N.D. Judge Limits Water Rule Injunction to 13 States

On September 4, a federal judge in North Dakota clarified his August 27 decision blocking the implementation of the EPA and the U.S. Army Corps of Engineers’ Water of the United States rule, which went into effect August 28. He refused to impose a nationwide injunction on the U.S. Environmental Protection Agency’s rule clarifying the scope of the Clean Water Act.

Thus, the injunction only impacts the 13 states that filed for it: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.

Most other cases have been consolidated into one lawsuit at the Court of Appeals for the Sixth Circuit in Cincinnati. Multiple litigants had requested injunctions in their lawsuits, and most had been dismissed and deferred to the Sixth Circuit.

Congress returned on Tuesday, Sept. 8, which means there is an opportunity to pass S. 1140, which if passed, and signed into law by President Obama, would require EPA to rewrite many aspects of the rule including definitions of adjacency, significant nexus, tributaries and what constitutes a ditch.

In the meantime, NALP is continuing to vigorously push for relief from Congress. Thanks to everyone who took the time to call their Senators in support of Federal Clean Water Protection Act (S.1140). There are presently 43 cosponsors of the bill with some democrats signing on.

The Senate leadership has said that it will not bring the Federal Clean Water Protection Act (S. 1140) to the Senate floor unless there are 60 confirmed votes for the measure. In order to reach the 60-vote threshold, we are focusing our grassroots efforts of the list of Senators below.

If you live in Colorado, Maine, Michigan, Minnesota, Missouri, Montana, Pennsylvania or Virginia, please continue to call your Senators at their district offices and ask for their support of S. 1140. District office contact information is below, as are some talking points for your conversations.

 

Senator King (I-ME) 207-622-8292

Senator Tester (D-MT) 406-252-0550

Senator McCaskill (D-MO) 417-868-8745

Senator Warner (D-VA) 804-775-2314

Senator Stabenow (D-MI) 313-961-4330

Senator Casey (D-PA) 215-405-9660

Senator Bennet (D-CO) 303-455-7600

Senator Franken (D-MN) 651-221-1016

Senator Klobuchar (D-MN) 612-727-5220

 

Some suggested talking points:

 

  • Please co-sponsor the bipartisan Federal Clean Water Protection Act, S. 1140. The final Clean Water Rule would have a profound and significant impact of professionals to protect public and private property near water from harmful pests, as well as their ability to install plants and other landscape features.
  • The rule creates a great deal of confusion and potential liability for lawn care and landscape professionals about whether or not permits are needed working on landscapes with certain water features.
  • New information has been released that shows the Army Corps of Engineers believes this rule is “legally vulnerable, difficult to defend in court, difficult for the Corps to explain or justify and challenging for the Corps to implement.” These concerns highlight the importance of Senate action on S. 1140

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