⋅ BY JAMISON CRUCE ⋅
On Wednesday, April 12, a federal judge in North Dakota granted a motion for a preliminary injunction in 24 states for the final federal rule revising the definition of “waters of the United States” (WOTUS) under the Clean Water Act. The rule had previously gone into effect on March 20, 2023.
This case was brought by several agricultural, natural resource, and construction industry trade groups which allege the final rule runs roughshod over the Administrative Procedures Act; is arbitrary and capricious; is “contrary to constitutional right, power, privilege, or immunity; exceeds statutory authority; was promulgated without observance of required procedure; and violates the Commerce Clause, the Tenth Amendment, the Due Process Clause, and the Non-Delegation Doctrine.”
This order coupled with a prior ruling on March 19, 2023, by a federal judge in Texas for Texas and Idaho means that the rule is now enjoined in more than half the country. The list of states where the rule is enjoined includes rice-producing states Arkansas, Florida, Louisiana, Mississippi, Missouri, and Texas, along with Alabama, Alaska, Georgia, Idaho, Indiana, Iowa, Kansas, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia, and Wyoming.
“This ruling sends a clear message of just how overreaching the Biden Administration’s power grab over non-navigable waters was for farmers and landowners,” said David Petter, an Arkansas rice farmer and chair of the USA Rice Regulatory Affairs & Food Safety Committee. “Rice farmers and our industry depend on water more so than nearly any other crop. We are committed to clean water, and the federal government must cooperate, not dictate how water is regulated – particularly for water that was never intended to be under federal jurisdiction.”
The Supreme Court of the United States heard Sackett v. EPA, a WOTUS-related case on October 3, 2022, and a decision that could have major implications on defining WOTUS is pending.