A federal judge has stopped new WOTUS rule in 2 states, but it takes effect elsewhere

A judge in Texas has put a stop to the Biden administration’s definition of “waters of the U.S.,” but only for two states — Texas and Idaho.

For the rest of the nation, the latest iteration of “waters of the U.S.,” or WOTUS, which the EPA and court system have spent decades trying to pin down, became the law of the land on Monday, March 20.

A judge in North Dakota, as of Wednesday, March 22, has yet to rule on a request for a preliminary injunction. West Virginia and a group of 23 other states filed suit in Fargo on Feb. 16 , and asked for the preliminary injunction on Feb 21.

But U.S. District Judge Peter Welte, who was first assigned the case in North Dakota, recused himself on Feb. 24. The recusal of Welte, who had called the Obama-era WOTUS rule “absurd” in a column written for Agweek , may have contributed to a delay in a ruling.

“You can’t expect a sort of uniformity in timeline between different courts,” said Charles Yates, an attorney at Pacific Legal Foundation in California. He is part of the legal team involved in a WOTUS test case in Idaho, Sackett vs. EPA, that is awaiting a Supreme Court ruling.

He said that while ideally, injunctions are granted before a law or rule takes effect, an injunction could still happen in the North Dakota-filed case, now assigned to U.S. District Judge Daniel Hovland, or in yet another case in Kentucky.

“Generally speaking, they raise similar claims,” Yates said of the three cases, which assert that the Environmental Protection Agency is overstepping its authority on water and drainage issues.

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The attorney general in Texas filed suit against the EPA and was joined by Idaho. The American Farm Bureau Federation, joined by other agricultural and business groups, had also filed a WOTUS suit in Texas. A judge combined with the two Texas cases and granted the injunction.

The WOTUS issue arises from the federal Clean Water Act of 1972. Over the years, which waters are governed by the act has been the subject of multiple cases that have risen to the Supreme Court level, with Sackett being the most recent.

The Farm Bureau has been heavily involved in the WOTUS issue because of its implications for farmers and ranchers.

In a statement after the Texas ruling, American Farm Bureau Federation President Zippy Duvall said, “The judge recognized the new rule likely oversteps EPA’s authority under the Clean Water Act, which creates uncertainty for the farmers and ranchers who must navigate the complicated regulations.”

The Biden administration has been criticized for not waiting until a ruling in Sackett, which the Supreme Court heard last fall, before trying to enforce its own definition.

In response to a question Wednesday from North Dakota Sen. Kevin Cramer on that subject, EPA Administrator Brian Regan said, “We recognize the Sackett case will have some impact on the rule, but what we didn't want to do was wait until after June, wait for the Supreme Court, and then start a two-year process which would have left farmers and ranchers in limbo.”

Yates said not waiting contributes to the “ping-pong” effect of different court rulings and different White House administrations.

“Really, it's agricultural producers, farmers and landowners who are stuck in the middle as that has played out,” Yates said. “They're forced to make long-term decisions against this backdrop of incredible uncertainty.”