“What’s going to happen next in WOTUS is a little tricky” — Brigit Rollins
By Mary Hightower
U of A System Division of Agriculture
Fast facts:
- Federal court in North Dakota issues injunction
- New EPA rule defining waters of the U.S. went into effect March 20
FAYETTEVILLE, Ark. — A federal judge in North Dakota has issued an injunction against the Environmental Protection Agency’s most recent rule defining waters of the United States in a case covering 24 states, including Arkansas.
North Dakota U.S. District Court Judge Daniel Hovland issued the injunction on Wednesday.
Brigit Rollins of the National Agricultural Law Center says the WOTUS case is mirroring what happened in 2015.
In February, Arkansas Attorney General Tim Griffin joined the North Dakota case. In the order granting the preliminary injunction, the North Dakota court found “that the new 2023 Rule is neither understandable nor ‘intelligible,’” and that it “raises a litany of other statutory and constitutional concerns.”
Defining waters of the U.S., or WOTUS, has been a struggle for decades. The definition is critical to enforcement of the Clean Water Act.
The latest version of the rule went into effect March 20. However, implementation of the rule had already been halted in two states by an injunction issued by a Texas federal judge. The North Dakota ruling brings to 26 the number of states where the new rule is on hold. A third case in a Kentucky federal court saw the suit being dismissed last week.
“This is a very interesting time in the WOTUS-sphere,” said Brigit Rollins, a National Agricultural Law Center staff attorney.
That “the rule has been enjoined in all of these various states now does not mean that the rule has been overturned,” “Litigation is still going to continue and in both of these cases right so the injunction is just kind of that first opening salvo.
“The procedural next step is to continue litigating the merits of the case, and that could take months or years. It’s hard to say,” she said.
Déjà vu all over again
Looming over everything is an expected decision from the U.S. Supreme Court in Sackett vs. EPA. While the case does not directly challenge WOTUS, it will have a direct impact on how WOTUS is defined.
“What’s going to happen next in WOTUS is a little tricky,” Rollins said. “We’ve been here before in 2015 when the 2015 WOTUS rule was enjoined in a little over half the states.
“We probably won’t have a clear idea of how the EPA plans to proceed or what happens next until the Sackett decision comes out,” she said.