The U.S. District Court for the District of North Dakota has granted a stay in a multistate lawsuit against the Environmental Protection Agency and US Army Corps of Engineers over the Biden Administration’s Waters of the United States (WOTUS) rule, dealing a blow to a coalition of agriculture and industry groups who filed a motion in June asking that the rule be vacated nationwide.
“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 the order.
The stay will remain in place, according to the court’s order, until a new final WOTUS rule is published in the Federal Register, which the federal agencies said they intend to do by Sept. 1, 2023. After the Federal Register publication occurs, the court said it will give parties in the case another 21 days to submit proposals for further court proceedings.
The ag and industry coalition had sought a court order to vacate the rule nationwide (GM July 7, p. 1) in the wake of the US Supreme Court’s May 25 ruling in Sacket v. EPA, which limited the agencies’ regulatory authority over wetlands under the Clean Water Act (CWA).
According to the 5-4 Supreme Court decision, the CWA extends only to “wetlands with a continuous surface connection” to water bodies that are already protected as permanent and directly connected to a traditional navigable water (GM May 26, p. 1). The ruling countered the “significant nexus” standard that guided EPA’s latest WOTUS definition, which was published in late December (GM Jan. 6, p. 1) and went into effect on March 20.
Judge Hovland in April issued a temporary injunction blocking the new WOTUS rule in 24 states, however, saying it posed a threat to the states’ sovereign rights and amounted to irreparable harm (GM April 14, p. 1) “The states involved in this litigation will expend unrecoverable resources complying with a rule unlikely to withstand judicial scrutiny,” he said. Injunctions against the rule are currently 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.