American Oil and Gas Reporter - September 2015 - 157

plan under which the Bureau of Land
Management has conducted National Environmental Policy Act due diligence with
regard to industry activity near Chaco
Culture National Historical Park. U.S.
Judge James Browning held the hearing
to determine whether to impose a moratorium on all new Mancos permitting until
the court decided the case. (Editor's Note:
On Aug. 14, Judge Browning declined to
issue a preliminary injunction against additional drilling, pending a ruling on the
merits of the lawsuit. See story page 18).

"The plaintiffs in the suit made arguments
that were highly effective in their media
and fundraising efforts," Gould recounts.
"These same arguments did not translate
as well into cogent legal arguments."
Henke, who attended the late July
hearing, concurs with that assessment.
Furthermore, he warns, it would set an
inadvisable precedent to halt activity on
the grounds that the RMP's environmental
impact statement did not focus on unconventional play techniques. "Granting
a moratorium would mean any change in

technology unforeseen at the time an EIS
was developed means activity must stop
on what are-in many cases-existing leases.
That is exactly what those groups want:
endless, time-consuming, costly analysis
and delay," he describes.
"We are cautiously optimistic about
the outcome," Gould said in mid-August.
"A major delay in any new development
and drilling activities until a new RMP
is completed would have dire consequences for the companies drilling wells
in Northwest New Mexico."
❒

Judge OKs Clean Water Rule Injunction
FARGO, N.D.-A federal judge has
granted a request for a preliminary injunction against the Clean Water Rule
filed by 13 states, ruling they were likely
to prevail on their claim that the U.S.
Environmental Protection Agency failed
to adhere to federal procedures in developing its definition of "waters of the
United States (WOTUS)" subject to regulation under the Clean Water Act.
The rule was set to be implemented
Aug. 28. Judge Ralph Erickson of the
District Court of North Dakota issued
his ruling Aug. 27. However, according
to EPA, the ruling applies only to the 13
states that requested the injunction. Media
sources quote White House officials as
stating EPA and the Army Corps of Engineers will apply the rule in the other 37
states, while parties to this lawsuit will
operate under earlier regulations.
Joining North Dakota in the July request for an order enjoining the Clean
Water Rule were Alaska, Arizona,
Arkansas, Colorado, Idaho, Missouri,
Montana, Nebraska, Nevada, South Dakota
and Wyoming, and New Mexico's Environment Department and state engineer.
Another 10-state group led by West
Virginia, and three states led by Texas,
also filed legal challenges to the WOTUS
definition (AOGR, August 2015, pg. 156).
U.S. district courts in Georgia and West
Virginia ruled challenges to the rule could
only be brought in the U.S. Court of Appeals for the 6th Circuit, and rejected requests for preliminary injunctions, media
reports say.
According to court documents, the
judge ruled that the states led by North
Dakota had "a substantial likelihood or
fair chance" of succeeding in their claim
because it was likely:
* EPA violated its congressional grant
of authority in promulgating the rule.
* EPA failed to comply with requirements of the Administrative Procedures
Act when it promulgated the rule.

In the filing, North Dakota Attorney
General Wayne Stenehjem said the WOTUS rule would usurp state and local
control over large portions of North
Dakota and across the nation. "It is an
unnecessary and unlawful power grab by
the federal government that will do nothing
to increase water quality in North Dakota,"
he asserted.

State Arguments
According to the request filed by the
states led by North Dakota, the WOTUS
definition would expand dramatically the
Clean Water Act's jurisdictional reach
and alter how states, EPA and the Army
Corps administered water quality programs. The states contend that if the rule
is allowed to go into effect, their sovereign
interests and budgets will be harmed.
The North Dakota lawsuit says the
Clean Water Act gives the agencies jurisdiction only over navigable waters as
defined under the WOTUS definition,
but that their new definition exceeds that
statutory authority by asserting:
* All waters that fall within the rule's
definition of "tributary" and "adjacent
waters" are per se jurisdictional.
* Strictly intrastate waters and their
related features could fall within the agencies' jurisdictional authority, based solely
on their relationship with non-navigable
interstate waters.
* Waters alone or in combination
with "similarly situated waters" that have
a "significant nexus" to a primary water,
or that significantly affect the chemical,
physical or biological integrity of a
primary water subject to the CWA are
within their jurisdictional authority.
According to the states' filing, these
categories of waters exceed the tests established by the U.S. Supreme Court in
Solid Waste Agency of North Cook County
v. Army Corps of Engineers (2001) and
Rapanos V. United States (2006).
In the latter case, Justice Anthony

Kennedy held that WOTUS included
only wetlands that had a significant nexus
to traditionally navigable waters, meaning
that the wetlands must "either alone or
in combination with similarly situated
lands in the region, significantly affect
the chemical, physical, and biological integrity of other covered waters more
readily understood as 'navigable.'"

The Decision
The Clean Water Rule fails to meet
Justice Kennedy's "significant nexus"
benchmark in that the breadth of the
agencies' standard leaves wide room for
them to regulate ditches, drains and
streams remote from any navigable-infact waters, Judge Erickson stated. "While
the agencies assert that the definition's
exclusions of drains and ditches remedies
the defect, the definition of a tributary
here includes vast numbers of waters that
are unlikely to have a nexus to navigable
waters within any reasonable understanding of the term," Erickson said.
The states also are likely to prevail on
their claim that the Clean Water Rule violates the Administrative Procedures Act,
the judge continued, saying courts could
set aside agency rules if they were arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with the
law. The two agencies made claims involving jurisdiction over waters that are
remote and intermittent. "No evidence
actually points to how these intermittent
and remote wetlands have any nexus to a
navigable-in-fact water," Erickson wrote.
"The standard of arbitrary and capricious
is met because the agencies have failed
to establish a 'rational connection between
the facts found and the rule as it will be
promulgated.'"
The rule also arbitrarily establishes
the distance from a navigable water that
is subject to regulation at 4,000 feet, the
judge noted. He said a review of all available information failed to provide any
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American Oil and Gas Reporter - September 2015

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