Less than four months ago, the Biden administration unveiled “a durable definition” of the upstream reach of clean water laws across the country — a so-called waters of the United States (WOTUS) regulation. With a ruling on Wednesday, federal judges have enjoined implementation of the rule in 26 of the 50 states while they hear lawsuits that would void the regulation.
U.S. district judge Daniel Hovland issued a preliminary injunction against use of the new WOTUS rule in 24 states, from Florida to Alaska, on Wednesday. Hovland, based in Bismarck, North Dakota, said there were numerous statutory and constitutional issues with the regulation. District judge Jeffrey Brown, sitting in Galveston, Texas, issued a similar order in late March that covered Idaho and Texas.
Opponents of the rule said the administration should admit defeat. “With the new WOTUS rule on hold in more than half the country, EPA & the Army Corps should do the right thing, listen to our concerns & rewrite the rule,” Zippy Duvall, president of the American Farm Bureau Federation, said on social media. The Farm Bureau is a lead plaintiff in the Texas lawsuit against WOTUS.
“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,” said Todd Wilkinson, president of the National Cattlemen’s Beef Association.
The Supreme Court is expected to rule soon on an Idaho case that would restrict federal protection of wetlands to territory with a surface connection to waterways. The Supreme Court ruled in 2006 that wetlands with a “significant nexus” to navigable waterways were covered by water pollution laws. The Biden administration said its rule, which employed the significant nexus standard, covered what was intended by Congress when it wrote the 1972 Clean Water Act: “Territorial seas, interstate waters, as well as upstream water resources that significantly affect those waters.” The administration said cropland converted from wetlands would remain exempt from WOTUS; the exemption dates from 1993.
The Trump administration wrote a WOTUS rule with a much narrower focus. It was overturned in a federal district court in 2021. The Obama administration proposed a WOTUS rule in 2015. It was immediately challenged in court and never took effect.
Last week, Biden vetoed a Republican-led resolution to excise the WOTUS rule, saying it would leave the country without a clear definition of wetland protections.
North Dakota Sen. John Hoeven, who voted to overturn WOTUS, said he would “continue working to provide regulatory relief and prevent President Biden from advancing his harmful and costly Green New Deal agenda.”
The EPA said WOTUS would remain in effect in the states not covered by the injunctions. “Our goal is to protect public health, the environment, and downstream communities while supporting economic opportunity, agriculture, and industries that depend on clean water.”
Hovland’s preliminary injunction covers 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.