Federal Court Greenlights States' Lawsuit Against Biden's Revised WOTUS Rule

October 13, 2023

Twenty-four states that challenged the Biden administration's waters of the U.S. rule are expected to file an amended complaint against EPA's new version of the rule finalized this fall.

A July 2023 stay has been lifted on a lawsuit filed by the states after the EPA posted a new final rule that removed the term "significant nexus" from the WOTUS definitions, according to an order handed down by the U.S. District Court for the District of North Dakota.

The states 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.

The initial lawsuit filed last February asked the court to throw out the Biden rule claiming the EPA and U.S. Army Corps of Engineers "toppled the cooperative federalism regime" by implementing a rule that is "overbroad and hopelessly vague."

As a result of the Supreme Court's May 2023 ruling in Sackett v EPA, the Biden administration was forced to make changes to the WOTUS rule.

EPA published an updated final rule on Sept. 8, 2023. Although the updated rule removed significant nexus from the language, states and business groups came out in opposition.

"Accordingly, the court finds the basis for imposing the stay no longer exists," the federal court said in an order this week.

The states and any other plaintiffs have until Nov. 13 to file an amended complaint against the new rule.

A group of agriculture groups intervened in the case on behalf of the states. That includes the American Farm Bureau Federation, American Petroleum Institute, National Cattlemen's Beef Association, National Corn Growers Association, National Pork Producers Council and the U.S. Poultry and Egg Association.

EPA and the Corps of Engineers will have until Dec. 13 to respond to the amended complaints, as will any intervenors on behalf of the agencies.

The Supreme Court's May ruling in Sackett v EPA essentially left the previous 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 previous Biden rule used to make determinations.

EPA and the Corps of Engineers used the significant-nexus standard to make determinations for years.

The standard essentially allowed regulators to claim jurisdiction over even dryland features if there was scientific evidence of a chemical and biological connection to actual navigable waters such as lakes, streams and rivers.

The states asked the court to vacate and set aside the final rule and to send it back to the agencies to "issue a rule that complies with the Constitution." The states argued the rule violated the Administrative Procedure Act.

"The final rule is riddled with problems," the states said in their lawsuit.

"It exceeds the agencies' statutory jurisdiction and authority under the CWA by encompassing waters with no reasonable connection to 'navigable waters.' It is arbitrary and capricious because -- among other things -- it embraces vague standards with little justification and minimal consideration of costs."

Source: DTN