Published: March 27, 2023 |

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A federal court judge in Texas issued a preliminary injunction against the Biden administration’s waters of the U.S., or WOTUS rule, Sunday, March 19. The injunction applies only to Texas and Idaho.

The 2023 WOTUS rule takes effect Monday, March 20 in the rest of the country and determines which waters and wetlands receive federal protection under the Clean Water Act.

U.S. District Court Judge Jeffrey Vincent Brown wrote that Texas and Idaho, in Texas v. EPA, are likely to successfully challenge the rule’s imposition of Clean Water Act jurisdiction over all interstate waters regardless of navigability.

Since the Environmental Protection Agency and the Army Corps of Engineers finalized the new rule, which codifies a pre-2015 definition of WOTUS with some tweaks, at least 26 states as well as agricultural and industry groups have joined at least five lawsuits seeking to vacate the rule.

The EPA and Army Corps’ interpretation of the Clean Water Act to include all interstate waters without “any limiting principle” raises “serious” federalism questions, Brown wrote.

The rule is likely to irreparably harm Texas and Idaho for intruding on their sovereignty and imposing unrecoverable compliance costs, Brown said.

Brown said he limited the rule to just the two plaintiff states in the case because states that haven’t challenged the rule have the right to embrace it if they choose, and other courts should have the opportunity to consider the rule in separate litigation.

The EPA said in a statement Monday that it’s reviewing the ruling and considering its options, adding that the 2023 WOTUS rule is now in effect nationwide except in Texas and Idaho.

The ruling is likely to result in immediate “uncertainty and confusion” across the country, said Larry Liebesman, a senior adviser at the environmental and water permitting firm Dawson & Associates.

“This will especially be a problem for companies doing business in Texas and Idaho as well as other states, facing potential costs and liability due to differing standards,” Liebesman said.

Each White House since 2008 has either expanded or shrunk the number of wetlands and waterways that receive federal protection. The Trump administration’s rule vastly reduced the protected wetlands nationwide.

The case is Texas v. EPA, S.D. Tex., 3:23-cv-00017, 3/19/23.

Source: Bloomberg

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