Texas AG Pushes for WOTUS Injunction

Legal Fight on 2015 WOTUS Rule Continues as Proposed Rule Remains in Progress

Todd Neeley
By  Todd Neeley , DTN Environmental Editor
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While the EPA continues to take public comments on a proposed waters of the United States, or WOTUS, rule, states across the country continue to fight the 2015 rule. (DTN file photo by Chris Clayton)

OMAHA (DTN) -- The Texas attorney general is pressing a federal court in Galveston, Texas, to issue a national injunction on the 2015 waters of the United States, or WOTUS, rule after a court in Ohio denied a similar motion in recent weeks.

After a long series of court actions in the past couple of years, a split remains between states still under jurisdiction of the 2015 rule and those that are not.

At present, the rule is on hold in 28 states and in effect in 22.

In the meantime, the EPA continues a public comment period on a proposed new rule.

The states of Ohio and Tennessee had asked the U.S. District Court for the Southern District of Ohio for a national injunction on the 2015 rule. At the end of March, that court denied the request.

"Accordingly, the court finds that such relief is not warranted as the states have failed to carry their burden in demonstrating that they will suffer irreparable harm absent a preliminary injunction," the Ohio court ruled.

States and agriculture interest groups have expressed concern the split in jurisdiction has created confusion and is harming stakeholders including farmers and ranchers.

On Wednesday, Texas Attorney General Ken Paxton pressed the U.S. District Court for the Southern District of Texas to reconsider the Texas, Louisiana and Mississippi request for a national injunction of the 2015 rule.

The three states had asked the Texas court for an injunction on Aug. 22, 2018. The court instead issued an injunction for those three states.

"That the Ohio court has chosen to rule inconsistently with every other court to consider the matter underscores 877, the need for this court to act immediately to grant the plaintiff states' request to enjoin the 2015 WOTUS rule nationwide to provide much-needed protection from immediate and irreparable harm," Paxton wrote in a notice filed with the Texas court this week.

For the past three years, the 2015 WOTUS rule has been hung up by dozens of lawsuits and legal procedures across the country.

A number of court and government actions were taken in 2018 on the WOTUS rule, including:

-- In January 2018, the EPA finalized a rule to delay the 2015 rule by two years to allow for an agency rewrite.

-- In February, attorneys general in 10 states sued EPA alleging the rule to delay was unlawful. A federal court threw out the rule.

-- Also in February, the American Farm Bureau Federation and other agriculture groups asked a court in Texas for a national preliminary injunction to prevent the 2015 rule from taking effect.

-- In June, the same district court in Georgia issued a preliminary injunction against WOTUS in 11 states.

-- In August, a federal judge in the U.S. District Court for the District of South Carolina ruled EPA did not follow the Administrative Procedures Act in finalizing its rule to delay the 2015 WOTUS for two years. As a result, the rule took effect in 26 states. That meant the rule was on hold in 24 states at that time.

-- Also in August, the AFBF asked an appeals court in Virginia to stay the ruling in South Carolina.

-- At the end of August, the AFBF asked the Georgia court to issue a national injunction to prevent the 2015 rule from taking effect.

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

Follow him on Twitter @toddneeleyDTN

(ES/SK )

Todd Neeley

Todd Neeley
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