The latest iteration of the Waters of the United States (WOTUS) rule took effect on March 20 for most of the country. A federal judge in Texas has blocked the implementation of the rule in both Texas and Idaho. “The Agencies’ effort to read navigability out of the statute’s text to permit categorical encroachment on States’ rights raises constitutional questions this court should—if any other reasonable interpretation of the Act exists—avoid,” U.S. District Judge Jeffrey Vincent Brown said in his opinion.
At the same time, Judge Brown also denied a request for a nationwide injunction. In his ruling, he said that certain parameters of the new WOTUS rule raise several questions likely to be litigated further.
“The Rule is unlikely to withstand judicial review because its version of the significant-nexus test is materially different from the standard Justice Kennedy articulated in Rapanos,” the ruling notes. “The Agencies’ construction of the significant-nexus test ebbs beyond the already uncertain boundaries Justice Kennedy established for it. Specifically, by extending the significant-nexus test to ‘interstate waters,’ and not just to those ‘waters . . . understood as ‘navigable,’’ the Rule disregards the Act’s ‘central requirement’—’the word ‘navigable.’’”
The decision has received mixed reactions from industry groups. Many expressed appreciation for blocking WOTUS in Texas and Idaho and disappointment in not preventing implementation on a national level. “The District Court ruling also undermines the agencies’ rationale for pushing through this new rule before the Supreme Court rules in Sackett v. EPA. These legal challenges send a clear message to EPA that it should rewrite WOTUS to limit its scope to navigable waters,” said Zippy Duvall, American Farm Bureau Federation President.
The National Cattlemen’s Beef Association (NCBA) said WOTUS places additional burdens on farmers and will continue to drive up costs of production. NCBA indicated they will continue efforts to address the issue after the disappointing decision from Judge Brown. “The court’s decision to keep the Biden administration’s WOTUS rule in place is concerning and irresponsible,” said NCBA Chief Counsel Mary-Thomas Hart.
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