Three States Granted WOTUS Injunction

Texas Attorney General Letter Leads to Ruling on Waters of US Rule

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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The 2015 waters of the United States rule continues to be in effect in 23 states. (Photo by Chris Clayton)

OMAHA (DTN) -- A Texas court has issued an injunction against the 2015 waters of the United States, or WOTUS, rule after the Texas attorney general's office told the court it was ready to appeal to a higher court.

As a result of a South Carolina court's recent ruling, the rule was in effect in 26 states and on hold in 24 states. The South Carolina court on Aug. 16 ruled that the EPA did not follow the Administrative Procedures Act in finalizing its rule to delay the 2015 WOTUS for two years.

On Wednesday, the U.S. District Court for the Southern District of Texas in Galveston granted a request for a temporary injunction of the rule in Texas, Mississippi and Louisiana.

As a result of this latest ruling, WOTUS is now on hold in 27 states: Texas, Mississippi, Louisiana, Georgia, Alabama, Florida, Indiana, Kansas, North Carolina, South Carolina, Utah, West Virginia, Wisconsin, Kentucky, South Dakota, Missouri, Alaska, North Dakota, New Mexico, Idaho, Arizona, Nebraska, Montana, Arkansas, Nevada, Colorado and Wyoming.

The 2015 rule now is in effect in 23 states: Iowa, Illinois, California, Washington, Oregon, Tennessee, Vermont, Virginia, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, Minnesota, Michigan, Massachusetts, Maryland, Maine, Hawaii, Delaware and Connecticut.

The Texas court's ruling came after the Texas attorney general's office wrote a letter to the court, requesting a decision or the three states would appeal to a higher court.

In the ruling on Wednesday, the court said it issued the ruling primarily because it was in the public interest.

"At this early stage in the proceedings, the strength of the states' case should not be overstated," the order said. "While the court does believe that each of the above listed factors for a preliminary injunction have been met, it is the fourth factor pertaining to the public's interest in this matter that tipped the balance in favor of granting an injunction -- and did so to an overwhelming degree."

Attorneys general in Texas, Louisiana and Mississippi have been pressing the Texas court for an injunction since 2015, but the court had not issued a ruling until now.

In a letter to the court dated Sept. 6, those states asked the court to issue a ruling or they would appeal to a higher court.

On Aug. 16, WOTUS took effect in 26 states after a federal judge issued a nationwide injunction on the EPA rule that delayed the implementation of the Obama-era regulation. The rule redefined which wetlands and small waterways are covered by the Clean Water Act. Many farmers and ranchers feared the change would lead to increased government regulation of their land.

In a letter to District Judge George C. Hanks Jr., the Texas attorney general's office expressed frustration at the court's lack of action despite repeated requests prior to Thursday's ruling.

"The need for injunctive relief, already strong, is now urgent," the letter said. "Having met the elements for injunctive relief, the plaintiff states are entitled to a preliminary injunction. They are certainly entitled to a ruling, which they have been diligently pursuing. Unfortunately, their diligence has not been rewarded with any action from the court."

States led by Texas requested preliminary injunctive relief in September 2015 after the WOTUS rule took effect, and again in February 2016.

In the letter to the court, the states said they were prepared to appeal to a higher court to force the Texas court to consider their case.

"Therefore, the plaintiff states write to notify the court that on Sept. 13, 2018, absent a ruling on their long-outstanding preliminary injunction request, they will be compelled to seek a writ of mandamus from the Fifth Circuit (New Orleans) directing this court to rule on the pending motion for preliminary injunction."

On Aug. 24, Texas, Louisiana and Mississippi asked the Texas court to expedite its consideration for a nationwide injunction of the rule after a court in South Carolina issued a ruling that allows the rule to take effect in 26 states.

Agriculture groups led by the American Farm Bureau Federation, filed an appeal with the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia. They are attempting to overturn a U.S. District Court for the South Carolina District ruling that threw out the EPA's rule to delay the implementation of the 2015 WOTUS rule by two years until 2020.

In the motion filed on Aug. 20, the farm groups asked for a stay pending that appeal. So far, the court has not ruled on the request.

The suspension rule would have given the agency until 2020 to complete a rewrite of WOTUS. Following the South Carolina court's decision, it reverted back to the U.S. Supreme Court ruling that found appeals courts do not have jurisdiction on the WOTUS issue. Instead, that jurisdiction lies with the district courts, the Supreme Court ruled.

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Todd Neeley

Todd Neeley
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