- DTN Headline News
EPA Appeals Texas, Idaho WOTUS Freeze
By Todd Neeley
Tuesday, May 23, 2023 11:19AM CDT

LINCOLN, Neb. (DTN) -- The EPA has appealed a ruling from a federal court in Texas that put the Biden administration's waters of the U.S. rule on hold in Texas and Idaho, in a filing with the U.S. Court of Appeals for the Fifth Circuit in New Orleans.

Currently the WOTUS rule is on hold in 26 states after injunctions were handed down by the U.S. District Court for the District of Southern Texas and the U.S. District Court for the District of North Dakota.

The complications and court wrangling over the Biden administration's rule are further muddied because most groups dealing with the waters of the U.S. rule are also waiting on a U.S. Supreme Court ruling in the Sackett v. EPA case that also is expected to provide more clarity over the federal government's permit authority under the Clean Water Act.

EPA appealed the Texas court's March 19, 2023, order that prevents the agency from enforcing WOTUS in Texas and Idaho.

U.S. District Judge Jeffrey Brown in the Southern District of Texas in Galveston put the injunction in place as the rule took effect on March 20 in the rest of the country. The injunction will remain in place pending consideration of motions to vacate the rule and send it back to the EPA.

Brown, a Trump appointee, denied a motion for a national injunction against the new rule sought by ag groups led by the American Farm Bureau Federation.

Texas and five agencies in the state filed a lawsuit against the EPA and the U.S. Army Corps of Engineers on Jan. 18 and a total of 18 interest groups including the agriculture, oil and housing industries filed suit a day later in the same court in Galveston.

There is one other WOTUS lawsuit pending in federal court in North Dakota. That court put the rule on hold in Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia and Wyoming.

As of Tuesday morning, EPA had not filed an appeal to the injunction granted by the North Dakota court.

In the Texas case, Brown found Texas and Idaho have a "substantial likelihood" they would prevail on the merits of the case, would face a "substantial threat" that they would suffer "irreparable injury" without an injunction, that the threat of injury outweighs the "threatened harm" to the party they seek to enjoin and that the injunction was in the public's interest.

Brown, however, found the associations also party to the lawsuit, including the American Farm Bureau Federation, have not shown "irreparable harm" if a national injunction is not issued.

Brown's ruling was critical of the Biden administration's use of two tests -- significant nexus and relatively permanent -- when making jurisdictional determinations. The decision was seen as a setback by environmental groups that are defending the Biden administration's approach.

Texas argued the WOTUS rule effectively asserts jurisdiction "over non-navigable, intrastate waters based solely on whether the use, degradation, or destruction of the water could affect interstate or foreign commerce."

Texas said the rule "unlawfully expands" federal jurisdiction and "arbitrarily casts federal authority over a remarkable array of water features (or dry land).

Read more on DTN:

"Court Puts WOTUS Hold in Texas, Idaho," https://www.dtnpf.com/…

"WOTUS Stopped in 26 States After Ruling," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @DTNeeley

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