Court Sides with Biden EPA, Denies Ag Groups Motion to Vacate WOTUS Rule

July 20, 2023

A federal court in North Dakota granted a stay in an ongoing multistate lawsuit against the EPA's latest waters of the U.S. rule, giving the Biden administration time to complete a rewrite.

The U.S. District Court for the District of North Dakota sided with an EPA motion to delay the case.

"The court has carefully reviewed the motion and the entire record and finds the federal defendants have demonstrated good cause for the grant of a stay," U.S. District Judge Daniel Hovland said in an order.

Agriculture and other business interests filed a motion to vacate the rule, while the 24 states that sued and received a preliminary injunction against the WOTUS rule did not oppose a delay to allow for a rewrite. Another stay remains in effect in Texas and Idaho as well.

The stay will remain in place, according to the court's order, until a new final rule is published in the federal register. Once that's completed, the court will give parties in the case another 21 days to submit proposals for further court proceedings.

The Supreme Court's May ruling in Sackett v EPA essentially left the current rule unenforceable.

In that case involving Idaho property owners Michael and Chantell Sackett, the Supreme Court ruled the agency's use of the "significant-nexus" test in making Clean Water Act determinations was unconstitutional. The test is one of two the Biden rule uses to make determinations.

Agriculture and business groups including the American Farm Bureau Federation and the National Cattlemen's Beef Association sought immediate changes to Clean Water Act determinations in a motion filed with the federal court in North Dakota.

The groups wanted the court to require the EPA and the U.S. Army Corps of Engineers to apply the Sackett ruling and formally declare ephemeral and isolated waters as no longer jurisdictional.

In asking for the stay, the Biden administration said it plans to issue a proposed rewrite by Sept. 1.

In pushing for the court to vacate the rule, the ag groups said they have no confidence that any new rule put forward by the EPA and the Corps of Engineers will "fairly account" for the Sackett opinion.

The groups argued that allowing the current Biden rule to remain in effect until a new rule is promulgated would put farmers, ranchers and other landowners at "continuing risk of criminal and civil penalties" for "ordinary" use of their property.

Injunctions against the Biden rule are in effect in Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming.

EPA and the Corps of Engineers have used significant nexus for years. The standard essentially allows regulators to claim jurisdiction over even dryland features if there is scientific evidence of a chemical and biological connection to actual navigable waters such as lakes, streams and rivers.

Justice Samuel Alito said in writing the majority opinion in the latest Sackett ruling that EPA's interpretation of the law "gives rise to serious vagueness concerns in light of the CWA's criminal penalties."

"Due process requires Congress to define penal statutes 'with sufficient definiteness that ordinary people can understand what conduct is prohibited,'" Alito wrote, "and 'in a manner that does not encourage arbitrary and discriminatory enforcement.' Yet the meaning of 'waters of the United States' under the EPA's interpretation remains hopelessly indeterminate.

"The EPA contends that the only thing preventing it from interpreting 'waters of the United States' to 'conceivably cover literally every body of water in the country' is the significant-nexus test."

Source: DTN