EPA Keeps Fighting on Biden WOTUS Rule

Despite WOTUS Loss at Supreme Court, EPA Continues Fight for Biden Rule

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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The EPA asked a federal appeals court to review a preliminary injunction issued against the waters of the U.S. rule in 24 states. (DTN file photo)

LINCOLN, Neb. (DTN) -- Despite a significant loss in the Supreme Court that likely will require the EPA to rewrite the Biden administration's waters of the U.S. rule, the agency on Monday filed an appeal seeking review of a preliminary injunction against the rule in 24 states.

The Supreme Court on May 26 sided with Michael and Chantell Sackett in their ongoing wetlands battle with the EPA. In particular, the court ruled the agency has no legal basis to use the so-called significant-nexus test when making Clean Water Act determinations. The significant-nexus test is the backbone of the Biden administration's rule, meaning the administration likely has no choice but to withdraw and rewrite the rule.

On the same day as the court's ruling, the Biden administration asked for and received an extension to June 29 of a court deadline in the U.S. District Court for the District of North Dakota. That court issued a preliminary injunction, stopping the EPA from enforcing the rule in 24 states.

On Monday, the EPA filed an appeal to the U.S. Court of Appeals for the Eighth Circuit in St. Louis, Missouri, asking for review of the preliminary injunction.

So far, the Biden administration has given no indication of its intentions with the WOTUS rule.

That injunction is in effect in Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia and Wyoming.

The Supreme Court ruled unanimously that the significant-nexus test used by the EPA and the U.S. Army Corps of Engineers was illegal.

EPA Administrator Michael Regan issued a statement following the court's ruling, saying in part the decision "erodes longstanding clean water protections." Regan added, "The Biden-Harris administration has worked to establish a durable definition of 'waters of the United States' that safeguards our nation's waters, strengthens economic opportunity, and protects people's health while providing the clarity and certainty that farmers, ranchers, and landowners deserve. These goals will continue to guide the agency forward as we carefully review the Supreme Court decision and consider next steps."

The Sackett case is considered by many experts to be a turning point in determining the reach of the Clean Water Act.

Writing the majority opinion in the May 26 ruling, Justice Samuel Alito said the CWA's reach was far narrower than EPA and the Corps of Engineers have interpreted for years.

"The EPA, however, offers only a passing attempt to square its interpretation with the text and its 'significant nexus' theory is particularly implausible," Alito wrote. He said the definition of waters of the U.S. is more limited. "And, in any event, the CWA never mentions the 'significant nexus' test, so the EPA has no statutory basis to impose it," Alito stated.

The Sacketts have been battling EPA since 2007 for the right to build on land the agency has deemed to be a wetland. Their property sits on a lakefront and they've argued that there is no surface connection between the lake and their land.

Read more on DTN:

"Will EPA Need to Pull Biden WOTUS Rule?" https://www.dtnpf.com/…

"SCOTUS Sides With Sacketts in CWA Case," https://www.dtnpf.com/…

"WOTUS Stopped in 26 States After Ruling," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @DTNeeley

Todd Neeley

Todd Neeley
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