WOTUS rule now blocked in 26 states

The Biden administration’s rule defining “waters of the U.S.” is no longer in effect in more than half the country as the result of a district court injunction issued Wednesday.

Twenty-four states “have persuasively shown that the new 2023 Rule poses a threat to their sovereign rights and amounts to irreparable harm,” Senior U.S. District Judge Daniel Hovland said in his order. A judge in Texas has already issued an injunction preventing enforcement of the rule in that state and Idaho, while a judge in Kentucky rejected an injunction request from Kentucky.

The states are supported in the North Dakota litigation by ag trade groups such as the American Farm Bureau Federation and National Cattlemen’s Beef Association.

“Cattle producers in 26 states now have some additional certainty while this rule is being litigated and we are optimistic that the Supreme Court will provide nationwide clarity on the federal government’s proper jurisdiction over water,” NCBA President Todd Wilkinson, a South Dakota cattle producer, said.

The high court has yet to issue its opinion in the Clean Water Act Sackett case, involving two Idaho landowners.

“There is no urgency to implement the 2023 rule,” Hovland said. “The Supreme Court’s decision in Sackett will be issued by June 2023 and will likely address many of the unresolved legal issues and jurisdictional determinations at the heart of this lawsuit.”

Hovland agreed with the arguments made by the states, at times quoting at length from their filings to show the WOTUS rule lacks clarity and will be costly to implement.

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“There is little that is intelligible about the 2023 Rule and the broad scope of its jurisdiction,” Hovland said. “The EPA’s interpretation of the 2023 Rule does not provide any clarity nor equate with an intelligible principle to which the states can easily conform. And the rule does not provide fair notice to the states as to what will be considered ‘waters of the United States.’”

EPA “thought the 2023 Rule was consistent with the pre-2015 enforcement regime,” Hovland said. “However, the 2023 Rule and the EPA’s pre-2015 practice are at odds in several key ways.”

He also said it is “unclear whether the EPA provided full notice and comment on all relevant aspects of the new 2023 rule.”

Quoting from a Supreme Court decision from last year that found EPA exceeded its authority in issuing a rule covering power plant emissions, Hovland said “federal agencies are not permitted to exercise regulatory power ‘over a significant portion of the American economy’ or ‘make a radical or fundamental change to a statutory scheme’ through rulemaking without clear authorization by Congress.”

In addition to Texas and Idaho, which were covered by an earlier court decision, the states where the WOTUS rule is now enjoined are: Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia, and Wyoming.