On August 27, 2015, a federal judge in North Dakota granted a preliminary injunction, temporarily stopping the EPA from enforcing its new “Waters of the U.S.” rule in at least 13 states.   The states include: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.   The District Court ordered further briefing on whether that preliminary injunction applied nationwide or only to the plaintiff States.

That question was answered late last week, when the Court stated,

"Courts have broad discretionary power in crafting a preliminary injunction, including the authority to provide for nationwide applicability of the injunction. It goes without saying, however, that the competence to act should not be conflated with the idea that it is propitious to act. In the instant case, there are significant prudential reasons to limit the scope of the preliminary injunction to the entities actually before the court. In particular, a court might decline to act further out of respect for the decision making authority of the other courts who have ruled on this issue; or out of respect for the states who desire the implementation of the [WOTUS] as currently proposed by the Agencies; or even because the record before this court is not sufficiently complete to justify a broader application. Based on these considerations the court is of the opinion that the Agencies should be enjoined from enforcing the rule only to the immediate plaintiffs."

While experts have noted that a narrow application is not that surprising at such a preliminary stage, many have also indicated that it appears to undercut the notion of WOTUS as a nationwide rule. 

It is our understanding that additional clarification on the rule’s application will likely come when the Judicial Panel on Multidistrict Litigation (JPMDL) holds a hearing on the consolidation of district court cases in October.   At the present time, however, the rule is subject to application uncertainty.