A federal judge in Galveston, Texas has granted an injunction blocking the Biden administration’s Waters of the U.S. (WOTUS) rule from taking effect, but only in Texas and Idaho.
In his March 19 ruling, .U.S. District Court Judge Jeffrey Vincent Brown also turned down a request from 18 construction and other trade groups to issue a nationwide injunction against the regulation.
Outside of those two states, the rule, which sets federal protections for certain water bodies and wetlands under the US Clean Water Act, took effect on March 20.
Brown said that the associations “did not show that they or their members face irreparable harm” from the Biden regulation. The organizations include the American Road & Transportation Builders Association, Associated General Contractors, National Association of Home Builders and the National Stone, Sand & Gravel Association.
There are two other requests pending. One lawsuit, filed on Feb. 16 by 24 states in federal district court in North Dakota, seeks to have the Biden rule struck down and to bar the US Environmental Protection Agency and U.S. Army Corps of Engineers from enforcing it in those states
On Feb. 22, Kentucky filed a complaint against EPA and the Corps, contending that the Biden rule exceeds congressional authority under the Constitution’s Commerce Clause and also that the regulation exceeds the two agencies' authority under the Clean Water Act.
Kentucky is seeking to have the rule struck down and to have the court issue preliminary and permanent injunctions blocking the EPA and the Corps from implementing or enforcing it.
The North Dakota and Kentucky cases “could result in similar rulings” says Larry Liebesman, a senior adviser at water resources consulting firm Dawson and Associates.
Liebesman, a former U.S. Dept. of Justice litigator, said in an interview that having the new Biden rule in effect in some states but not others "does create, obviously, a lot of confusion."
Nick Goldstein, ARTBA vice president of regulatory and legal issues, says, “We’re certainly happy that the rule has been stopped in Texas and Idaho."
Goldstein said in an interview, “We had asked for a nationwide injunction because obviously waters don’t stop at state lines but we also understand that … judges can be very reluctant to strike down a rule on a nationwide basis.”
He adds, “Now we can move to the merits phase for the case where we can actually mount our legal challenge to the rule, [namely] that we think it’s overbroad."
The judge's decision comes as the Biden administration, states, construction groups and environmental organizations are awaiting a decision from the U.S. Supreme Court that seeks to clarify the more central issue of the bounds of federal jurisdiction under the Clean Water Act.
The issue has come before the high court several times since 1985 and the definition of what the clean water statute terms "Waters of the United States" has remained unclear.
The pending Supreme Court case is Sackett v. U.S. The court held oral arguments in the case in October and is set to rule on the case by July.
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