North Dakota Federal District Court Judge Daniel Hovland granted a preliminary injunction that will block the EPA from enforcing its new waters of the United States (WOTUS) rule in 24 states.
The ruling comes in response to a lawsuit filed by 24 state attorneys general (AGs).
“The group says the EPA’s WOTUS rule ‘goes beyond the power Congress delegated in the Clean Water Act (CWA), raises serious constitutional concerns, and runs roughshod over the Administrative Procedures Act,’” Montana AG Austin Knudsen said, according to WOWO 92.3 FM. “The administration’s water rule limits the use of land and violates the law and U.S. Constitution. The EPA greatly overstepped its authority by trying to claim jurisdiction over land and water not connected to any navigable water.”
The EPA’s new WOTUS definition was finalized in March and included streams, tributaries, and “‘adjacent wetlands,’ or wetlands close to other waters regulated by the [CWA],” says The Albany Herald.
“The 24 states in this case have persuasively shown that the new 2023 rule poses a threat to their sovereign rights and amounts to irreparable harm,” wrote Hovland in his order granting the preliminary injunction. “The states involved in this litigation will expend unrecoverable resources complying with a rule unlikely to withstand judicial scrutiny.”
When announcing the rule, the EPA said it believed the final definition achieved Congress’s intent in passing the 1972 CWA.
“This rule establishes a durable definition of [WOTUS] that is grounded in the authority provided by Congress in the [CWA], the best available science, and extensive implementation experience stewarding the nation’s waters,” states the EPA’s news release regarding the final WOTUS definition. “The final rule will cover those waters that Congress fundamentally sought to protect in the [CWA] — traditional navigable waters, the territorial seas, interstate waters, as well as upstream water resources that significantly affect those waters.”
According to the 24-state AG coalition, “the flawed and unlawful rule will affect farmers who may need to get permission from the EPA and the Army Corps of Engineers to fill or dredge wetlands or waterways, depending on whether those features fall under the federal government’s purview,” states a press release issued by Georgia AG Chris Carr. “Developers, miners and other property owners wishing to make use of their land will face federal government regulations, too.”
“This outcome is a major win for Georgia’s farmers and private landowners, who were facing an administration intent on regulating nearly every conceivable body of water in the country,” said Carr in the press release.
The injunction has been criticized by environmental groups, which are frustrated by the continuous legal battles preventing protection for the nation’s waterways.
“Rather than uphold the long-standing protections and bipartisan practice embodied in the rule, the ruling…makes it more difficult to reliably protect the wetlands and headwater streams that keep Georgia’s rivers clean for fishing, swimming, and as sources of drinking water,” Kelly Moser, a senior attorney at the Southern Environmental Law Center, said, according to the Albany Herald.
Georgia, West Virginia, Iowa, and North Dakota led the lawsuit and were joined by Alabama, Alaska, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, and Wyoming.
Other intervenor plaintiffs in the lawsuit include:
- American Farm Bureau Federation
- American Petroleum Institute
- American Road and Transportation Builders Association
- Associated General Contractors of America
- Cass County Farm Bureau
- Leading Builders of America
- National Apartment Association
- National Association of Home Builders of the United States
- National Association of Realtors
- National Cattlemen’s Beef Association
- National Corn Growers Association
- National Mining Association
- National Multifamily Housing Council
- National Pork Producers Council
- National Stone Sand and Gravel Association
- North Dakota Farm Bureau
- Public Lands Council
- U.S. Poultry and Egg Association