Federal judge blocks water rule in Arkansas, 23 other states

A small amount of water is seen in a pond in the cattle pasture that serves as the water source for a cattle ranch in Tallula, Ill., in this Aug. 3, 2012 file photo. The Environmental Protection Agency's rule defining waters of the United States seeks to clarify which waters or wetlands would trigger federal requirements such as permitting and state water quality certification. Seasonal and rain-dependent streams, as well as wetlands near rivers and streams, would be covered; others would be considered on a case-by-case basis to determine if they play a significant role in the quality of downstream waters. Landowners and developers say the government has gone too far in regulating isolated ponds or marshes with no direct connection to navigable waterways. (AP/Seth Perlman)
A small amount of water is seen in a pond in the cattle pasture that serves as the water source for a cattle ranch in Tallula, Ill., in this Aug. 3, 2012 file photo. The Environmental Protection Agency's rule defining waters of the United States seeks to clarify which waters or wetlands would trigger federal requirements such as permitting and state water quality certification. Seasonal and rain-dependent streams, as well as wetlands near rivers and streams, would be covered; others would be considered on a case-by-case basis to determine if they play a significant role in the quality of downstream waters. Landowners and developers say the government has gone too far in regulating isolated ponds or marshes with no direct connection to navigable waterways. (AP/Seth Perlman)

WASHINGTON -- A federal judge ruled Wednesday in favor of states seeking an injunction blocking a federal regulation affecting bodies of water, including navigable waterways, lakes and streams.

U.S. District Judge Daniel Hovland granted the preliminary injunction that prevents the enforcement of the "waters of the United States" rule in Arkansas and 23 other states challenging the definition. The decision additionally precedes a pending U.S. Supreme Court decision regarding the federal government's authority related to water protections.

The "waters of the United States" rule clarifies the waterways and wetlands protected under the Clean Water Act. The definition has been the subject of legal challenges in recent years. The Obama administration sought to expand the waters under federal protection in 2015, while the Trump administration replaced the rule in 2020 with narrower standards that federal courts rejected.

"Suffice it to say the Clean Water Act, and the varied and different definitions of 'waters of the United States,' have created nothing but confusion, uncertainty, unpredictability, and endless litigation throughout this country to date," wrote Hovland, a judge for the district of North Dakota, in a 45-page opinion.

The U.S. Environmental Protection Agency and the Army Corps of Engineers announced the latest definition in December with plans to implement the rule beginning March 20. Officials based the new rule on the "waters of the United States" definition in effect between 1986 and 2015.

The new rule additionally codifies guidance from a 2006 U.S. Supreme Court ruling examining actions affecting downstream waters and wetlands with a nexus to a protected waterway.

The announcement was met with ire from states and agricultural groups concerned about how the rule's implementation could harm farmers and ranchers. West Virginia Attorney General Patrick Morrisey, who led the states' challenge, described the rule as "an attempt from unelected bureaucrats to expand their own authority" with a broad definition.

Hovland said the states successfully demonstrated how the final rule limits states' ability to exercise sovereignty over natural resources, noting how regulatory changes create additional obstacles for completing projects.

"The volume of litigation that has generated from the Clean Water Act over the last decade from federal district courts, federal courts of appeals, and the Supreme Court of the United States reveals nothing but chaos and uncertainty. The Clean Water Act has generated nationwide inconsistency, ambiguity, lack of reliable jurisdictional determinations, and unpredictability for those waters the EPA and the United States Army Corps of Engineers assert jurisdiction over," the judge said.

"A careful regard of the public consequences of the new 2023 Rule leads to the conclusion the balance of harms weighs in favor of the States. It benefits the public to 'ensure that federal agencies do not extend their power beyond the express delegation from Congress.'"

Arkansas Attorney General Tim Griffin applauded Hovland's ruling, describing the preliminary injunction as a victory for protecting "private landowners from the Biden administration's overreach."

"This is a win for every Arkansas landowner -- especially rural landowners who have ponds and creeks that President Biden wants to regulate as part of his 'green agenda' through the [waters of the United States rule]," he said Wednesday.

Brigit Rollins, a staff attorney at the nonpartisan National Agricultural Law Center in Fayetteville, told the Arkansas Democrat-Gazette that previous regulations and EPA guidance will apply to Arkansas for the foreseeable future.

"What it means is that instead of the 2023 rule being in effect, the pre-2015 regulatory regime will be in place," she said.

Hovland handed down the decision less than a week after President Joe Biden vetoed a congressional resolution nullifying the new rule. The House of Representatives and the Senate passed the matter with a handful of Democrats joining Republican legislators. All six members of Arkansas' congressional delegation backed the resolution.

"This is good news for rural America," Sen. John Boozman, R-Rogers, told the Democrat-Gazette. Boozman and Sen. Tom Cotton. R-Little Rock, sponsored the Senate version of the resolution.

"I applaud Arkansas's collaborative efforts to fight this overreaching regulation so our farmers, ranchers and landowners maintain their decision-making authority, not unelected Washington bureaucrats."

Republican Reps. Rick Crawford of Jonesboro and Bruce Westerman of Hot Springs sponsored the House version of the resolution.

"Both Presidents Obama and Biden have tried to seize from state and localities, the regulation of ever-smaller wetlands, streams, ponds, and periodic sources of water," Crawford said. "This radical power grab for federal control would mean higher prices for agriculture products, as well as environmentalist vetoes over private land use, all without making our water cleaner."

The decision also comes before the Supreme Court's decision regarding the EPA's ability to regulate wetlands. Justices heard oral arguments in October on an Idaho couple's efforts to build a home on wetlands that federal officials determined are protected.

"Neither the federal government nor the States know what the controlling test is, and Supreme Court precedent to date has been of scant assistance. Hopefully, the Supreme Court decision in Sackett will provide some clarity," Hovland said.

"Until then, every state will continue to swim in waters of uncertainty, ambiguity, and chaos."

The Supreme Court is expected to issue its decision by the end of its term this June.


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