Judge freezes WOTUS fight until Biden issues new rule

By Pamela King, E.A. Crunden | 07/11/2023 04:26 PM EDT

The decision follows a request by Texas and Idaho for the court to strike down an earlier version of EPA’s water regulation.

Florida wetlands.

Florida wetlands are shown. Jeremy Gordon/Flickr

A federal judge has temporarily halted a legal battle over the Biden administration’s signature water regulation until EPA and the Army Corps of Engineers have a chance to rework the rule in light of a recent Supreme Court decision.

The U.S. District Court for the Southern District of Texas ordered a stay in the case Monday, stopping the litigation, even as Texas and Idaho had asked Judge Jeffrey Brown to use the Supreme Court’s ruling in Sackett v. EPA to scrap the Biden water rule once and for all after it had been blocked in more than half the country.

Brown, a Trump appointee, asked the parties to notify the court when EPA and the Army Corps publish their revised rule and ordered the agencies to provide updates every 45 days for the duration of the stay.


The stay order grants a request from EPA and the Army Corps, which was filed July 7. The agencies’ request followed a June 28 motion from Texas and Idaho to issue a final ruling against the Biden administration’s definition of “waters of the U.S.,” or WOTUS, which determines which streams and wetlands are subject to Clean Water Act protections.

Texas and Idaho had argued that the Supreme Court’s May ruling in Sackett — which severely scaled back wetlands protections and erased one of the legal underpinnings for the Biden WOTUS rule — left the regulation defunct.

EPA and the Army Corps have said that they have a plan to quickly revamp the rule in light of the Sackett decision.

Texas and Idaho had not filed a response to the Biden administration’s stay request before Brown issued his order Monday. But in a separate challenge to the Biden WOTUS rule launched by 24 other Republican-led states, industry groups are pushing back against the administration’s attempts to delay a legal resolution.

The American Farm Bureau Federation and other groups said they are “prejudiced by continued delay” of the litigation.

“Rather than immediately apply Sackett — and supply clear directions to the Corps and to stakeholders that ephemeral and isolated waters are no longer jurisdictional — the Agencies seek a stay so that they can promulgate a new rule,” the groups wrote in their filing in the U.S. District Court for the District of North Dakota.

That court has not yet reached a decision on the Biden administration’s stay request.

Brown’s order in the Texas and Idaho case marks the latest turn in a fiery legal back and forth that has run throughout the year, ever since EPA and the Army Corps unveiled their final WOTUS rule.

GOP officials and industry members spent several months fighting to head off the rule in the lead up to Sackett, asserting that the decision could completely change the regulation’s trajectory. More than half the country succeeded in its efforts to freeze the definition, leaving a scattered oversight patchwork in place.

In the aftermath of Sackett, the landscape has become even less clear. States exempt from WOTUS had returned to a status quo situation in place since the 1980s. But attorneys and other experts have noted that parts of the Supreme Court decision also nullify elements of those prior standards, making the current regulations unclear. Lawmakers from both sides of the aisle have pushed the Biden administration on next steps as they seek guidance around how to proceed.

EPA announced last month that its amended rule would be coming by September, a swift timeline that has alarmed critics and left experts questioning whether the move might open the agency up to litigation.

The Biden administration contends that the pace is in line with its rulemaking authority and that sufficient public input will be incorporated into the revisions.