Although the Biden administration says it will update its “waters of the United States” regulation by Sept. 1, it might have to act a bit faster than that under a motion filed in federal court in Texas. The motion asks the court to discard the Biden regulation entirely “and request that the agencies promulgate a new rule within 45 days.”
Because the Supreme Court “has disapproved many aspects” of the WOTUS rule as it now stands, “it should be vacated in its entirety,” said the motion filed by the states of Texas and Idaho and 17 mining, construction, and agriculture groups, including the American Farm Bureau Federation and the National Cattlemen’s Beef Association (NCBA).
In a May 25 decision, the Supreme Court ruled that the Clean Water Act provides federal protection to wetlands only if they have a “continuous surface connection” to streams, oceans, rivers, or lakes. The ruling would reduce the upstream reach of the 1972 anti-pollution law. Previously, wetlands were covered if there was a “significant nexus” between a tract and a waterway.
The Biden administration told a federal district court in North Dakota earlier this week that it was “developing a new rule to amend the (WOTUS) rule consistent with” the Supreme Court decision in Sackett v. EPA, the wetlands case. The North Dakota court has blocked implementation of the Biden rule in 24 states. The lawsuit filed in federal district court in Galveston, Texas, resulted in a preliminary injunction against the WOTUS rule in Texas and Idaho.
“A full rewrite of the Biden administration’s WOTUS definition is the only path to comply with the Sackett decision,” said NCBA attorney Mary-Thomas Hart.
The 45-day target for a new WOTUS rule could arrive as soon as mid-August if the federal judge in Texas were to rule speedily on the motion.
To read the motion in federal district court in Texas, click here.