On August 27, 2015, a federal district judge in North Dakota preliminarily enjoined the final rule of the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (ACOE), titled "Clean Water Rule: Definition of Waters of the United States," which was set to take effect on August 28, 2015. The U.S. District Court for the District of North Dakota acted in response to a motion filed by the 13 states that had joined as plaintiffs in a challenge to the final rule.[1]

In the broadest sense, the North Dakota District Court ruling concerns whether the final rule impermissibly expands the scope of the federal agencies' jurisdiction over small waterways beyond that granted by Congress, and it represents the first judicial marker—of others to come (a number of cases have been filed in federal district courts and consolidated in the Sixth Circuit)—on this central, substantive issue. But the ruling represents more than the District Court's view that the final rule is incongruous with the legislative grant of power. It represents something of a potpourri of bases for challenging EPA rulemakings on procedural grounds.

First, the District Court found that the rulemaking did not constitute, under the Clean Water Act (CWA), either an "effluent limitation" or "other" limitation on discharges or discharge processes. The District Court also held that the rulemaking was not the equivalent of a permitting action. These findings supported the District Court's determination that the Court of Appeals did not have exclusive jurisdiction to rule on the plaintiffs' motion for a preliminary injunction. Pending the outcome of anticipated appeals, challengers of future CWA rulemakings may be able to fasten on this aspect of the District Court's ruling and shop for favorable District Courts.

Second, as support for its conclusion that the final rule should be enjoined, the District Court relied on pre-decisional and deliberative memoranda of the federal agencies. The court acknowledged that it would have preferred to have reviewed the entire administrative record, but stressed that the full record was impossible to obtain in a timely fashion, leaving it no choice but to rely on the otherwise out-of-bounds documents. Those documents provided the basis for the court’s finding that the federal agencies' rulemaking action had been "inexplicable, arbitrary, and devoid of a reasoned process." This approach by the court could presage an increase in requests for preliminary relief in rulemaking challenges, compelling (or liberating) courts to review and rely upon agency documents that were likely written with an understanding that they would not be subject to judicial scrutiny.

Third, the District Court chastised the agencies for publishing a final rule that "materially altered" the proposed rule without offering the public an opportunity to make further comment. This aspect of the court's ruling could embolden future challengers of other final rules published without a new opportunity to comment to argue that notice and comment requirements have not been met. Anticipating this development, agencies may decide to err on the side of caution and ask for comments on revised proposed rules that, prior to the court's decision, might not have been the subject of a notice for comments. This would likely further protract an already protracted process.

Finally, although the District Court did not reach a decision on the issue, it noted that it was "unpersuaded" by the agencies' argument that they had no obligation to perform an Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA). Here, too, the court has provided some encouragement to those looking for procedural bases to challenge agency rulemakings.

The court's issuance of a preliminary injunction is anticipated to be appealed, and the outcome of the appeal proceeding could alter the landscape of one or more of these procedural issues. But at the moment, EPA and ACOE appear to be under substantial pressure from this ruling.