A federal judge on Wednesday enjoined the EPA’s new waters and wetlands protection rule from being enforced in 24 states, issuing a preliminary injunction similar to a ruling in March blocking the rule in Texas and Idaho.
The Biden administration’s 2023 waters of the US, or WOTUS, rule that took effect March 20 is now enjoined in more than half the country. A Kentucky federal judge declined to issue an injunction against the rule there in a similar lawsuit in early April.
The 24 states led by West Virginia have “persuasively shown that the new 2023 Rule poses a threat to their sovereign rights and amounts to irreparable harm,” Judge Daniel L. Hovland of the US District Court for the District of North Dakota ruled on Wednesday.
“The States involved in this litigation will expend unrecoverable resources complying with a rule unlikely to withstand judicial scrutiny,” he said.
West Virginia Attorney General Patrick Morrisey said in a statement the rule upsets the balance of power between the states and the federal government.
“It’s a decades-long effort by the EPA to regulate purely intrastate waters without the explicit consent of lawmakers,” Morrisey said. “It creates unneeded delays and costs for farmers, contractors, ranchers and anyone who cares about economic activity.”
The rule determines which wetlands and waterways are protected under the Clean Water Act as waters of the US. It is enforced by the EPA and the Army Corps of Engineers.
“The agencies are reviewing the decision and their options,” the Environmental Protection Agency said in a statement.
“The agencies continue to believe the rule, which is informed by the text of the relevant provisions of the Clean Water Act and the statute as a whole, as well as the scientific record, relevant Supreme Court case law, input from public comment, and the agencies’ experience and technical expertise after more than 45 years of implementing the longstanding pre-2015 regulations defining waters of the United States, is the best interpretation of the Clean Water Act.”
The Army Corps is now regulating federally-protected waters in the 26 states under the rule that was in effect before March 20, EPA said, a regulation dating from prior to 2015 that is similar to the 2023 rule that the Texas and North Dakota courts have enjoined.
The 24 states include West Virginia, North Dakota, Georgia, Iowa, Alabama, Alaska, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, and Wyoming.
The case is West Virginia v. EPA, D.N.D., 3:23-cv-00032, 4/12/23
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