CHARLESTON — A federal judge in North Dakota has issued a preliminary injunction to stop the Environmental Protection Agency from implementing its final rule redefining Waters of the United States.
“This is a victory for the states because this rule, if allowed to be implemented, will upset the balance of power between the states and the federal government without clear statement from Congress,“ said West Virginia Attorney General Patrick Morrisey, who is co-leading a coalition of 24 states in fighting the Biden administration on the issue. “It’s a decades-long effort by the EPA to regulate purely intrastate waters without the explicit consent of lawmakers.
"It creates unneeded delays and costs for farmers, contractors, ranchers and anyone who cares about economic activity.”
U.S. District Judge Daniel L. Hovland granted the plaintiffs' motion for preliminary injunction April 12 in the District Court of North Dakota case.
Morrisey said the rule would harm jobs and economic growth by taking jurisdiction from states and asserting federal authority over nearly any body of water, including roadside ditches, short-lived streams and many other areas where water may flow only once every 100 years.
“We’re glad the court saw the case the way we did," he said. "This is an attempt from unelected bureaucrats to expand their own authority by broadly defining Waters of the United States.”
Morrisey says the EPA, through the rule, also is violating the major questions doctrine decided by the U.S. Supreme Court last year in West Virginia v. EPA by imposing a major expansion of its jurisdiction under the Clean Water Act without consent from Congress.
In February, the coalition filed its lawsuit asking a federal court to vacate the newly published final rule redefining WOTUS and declare it unlawful.
West Virginia, Georgia, Iowa and North Dakota were joined in the lawsuit 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.
“This new final rule is a decades-long effort by the EPA to regulate purely intrastate waters without the explicit consent of Congress,” Morrisey said in February. “This is yet another attempt from unelected bureaucrats to expand their own authority by broadly defining Waters of the United States.”
The new final rule is the culmination of a decades-long rulemaking process to define the geographic reach of the EPA’s and Army Corps of Engineers’ authority in regulating streams, wetlands and other water bodies under the Clean Water Act. It follows the Trump Administration's 2020 Navigable Waters Protection Rule, which Morrisey and the other Republican AGs say offered a more restrained vision of federal jurisdiction under the CWA.
Most notably, they say the new rule redefines “navigable waters” to include ponds, certain streams, ditches and other bodies of water under the CWA, as determined by the EPA and the Army Corps of Engineers.
Morrisey said 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. Developers, miners and other property owners wishing to make use of their land will face implications, too.
He said states historically have had extensive authority over water, and the land that adjoins it, within their respective state borders. However, he says this authority is now under attack from the EPA, which he says has too broadly defined the bodies of water and wetlands subject to federal regulation.
The complaint says the EPA and Army Corps rushed to issue the final rule “even though the Supreme Court is expected to issue a key decision on the scope of WOTUS in just a few weeks’ time.”
The U.S. Supreme Court heard arguments last October on Sackett v. Environmental Protection Agency, a years-long battle over the reach of the CWA. Morrisey led a 26-state coalition in support of the petitioners, Michael and Chantell Sackett.
“The Supreme Court needs to define once and for all the term ‘Waters of the United States’ in such a way that state lands and waters are not subject to the whims of unelected bureaucrats,” Morrisey said.
“If the final rule is left in place, then ranchers, farmers, miners, homebuilders, and other landowners across the country will struggle to undertake even the simplest of activities on their own property without fear of drawing the ire of the federal government,” the coalition states in its complaint. “Landowning Americans of all stripes will thus be left with a choice: (a) fight their way through an expensive and lengthy administrative process to obtain complex jurisdictional determinations and permits or (b) face substantial civil and criminal penalties.
"The Final Rule’s ambiguous environmental benefits do not justify any of this,” according to the lawsuit.
U.S. District Court for the Eastern District of North Dakota case number 3:23-cv-00032