On March 19, a district judge ruled to block the Biden administration’s Water of the United States (WOTUS) rule from going into effect in two states, Texas and Idaho. The new rule went into effect for the rest of the country a day later, on March 20.
The WOTUS rule was finalized at the end of 2022 and clarified which bodies of water fall under federal jurisdiction under the Environmental Protection Agency’s (EPA) Clean Water Act, a clarification which many ag groups deem unnecessarily burdensome and confusing.
The recent ruling by U.S. District Judge Jeffery Vincent Brown comes after a lawsuit filed by a coalition of industry groups and business groups, including the Texas Farm Bureau and the Idaho Farm Bureau Federation.
The lawsuit argued the rule would expand federal jurisdiction to include ditches, ephemeral streams and other water bodies that are not traditionally considered navigable waters.
“The court agrees with the defendants that federally regulating some interstate waters may be necessary to carry out Congress’s intent to protect the nation’s waters, but the court is not convinced that the Act’s text supports unrestrained federal jurisdiction over all interstate waters,” the decision read.
“Farmers and ranchers need rules that don’t require a team of attorneys, environmental consultants and engineers to interpret,” said Texas Farm Bureau President Russell Boening in a statement. “These legal challenges are important. They send a clear message to EPA that it should rewrite WOTUS to limit its scope to navigable waters.”
Brown wrote in his opinion, “The court finds a substantial likelihood that the 2023 rule exceeds the agencies’ statutory authority under the Act. On the other hand, granting the injunction eliminates the risk of enforceable penalties that set the Rule apart from the status quo.”
He continued, “And there is little public interest or efficiency gained with implementing a rule codifying the significant-nexus test mere months before the Supreme Court decides whether the Rapanos version of that test is an appropriate exercise of the agencies’ jurisdiction under the Act.”
Brown noted that at least 25 other states have filed complaints and motions for preliminary injunctions against the new WOTUS rule, and the “judicial process will benefit from the reasoning and conclusions” of other courts weighing in.
Industry groups continue to contend that the Trump Administration’s Navigable Waters Protection Rule made it easier for producers and landowners to determine whether they have jurisdictional wetlands on their property.
The National Cattlemen’s Beef Association (NCBA) said while they appreciated the court blocking the rule in Texas and Idaho, they are disappointed the injunction is not nationwide.
“The court’s decision to keep the Biden administration’s WOTUS rule in place is concerning and irresponsible,” said NCBA Chief Counsel Mary-Thomas Hart. “Without a nationwide injunction, the rule takes full legal effect today and will become an immediate burden on our nation’s cattle producers. NCBA will continue efforts to defend our nation’s farmers and ranchers.”
The court ruled that the associations in the lawsuit, including NCBA, were unable to show how the new rule would cause irreparable harm.
“The states have produced numerous declarations that detail specific anticipated costs—monetary and otherwise—of complying with the rule,” the decision read. “The conclusory and speculative allegations in the associations’ declarations simply do not show that they or their members face irreparable harm.”
The Supreme Court of the United States (SCOTUS) heard oral arguments last October in Sackett v. EPA, a case reviewing whether the 9th Circuit Court of Appeals followed the proper determinations for whether wetlands are included under WOTUS. The court is expected to decide on the case before the end of its term. Ag groups have contended that the Biden administration deciding a new WOTUS rule before SCOTUS ruled on the Sackett case was irrational, as the decision can have impacts on any WOTUS rule.
The House of Representatives passed a joint resolution of disapproval under the Congressional Review Act in early March, which would have prevented the new WOTUS rule from going into effect. Even if the resolution was to pass both chambers of Congress, President Joe Biden indicated he would veto it.
The legal battle over the WOTUS rule is likely to continue, and the ultimate outcome will have far-reaching implications for landowners and producers. — Anna Miller, WLJ managing editor
