Federal judge blocks clean water rule in WV, 23 other states after WV-led challenge

A federal judge has blocked a rule that took effect last month that expanded the definition of waters and wetlands drawing federal protection, responding to a West Virginia-led court challenge.

Wednesday’s ruling blocks the Biden administration rule in West Virginia and 23 other Republican-led states that challenged the rule with support from farmer, home builder and mining trade groups. The ruling in the U.S. District Court for the District of North Dakota builds on a separate court ruling last month that blocked the rule in Texas and Idaho, leaving roughly half the country with the new rule in place.

“Every state will continue to swim in waters of uncertainty, ambiguity, and chaos,” District Judge Daniel Hovland wrote of the Environmental Protection Agency’s authority to determine what waters are protected under the federal Clean Water Act until the outcome of a case before the U.S. Supreme Court.

That case, Sackett v. EPA, questions whether a lower court properly tested whether wetlands are “Waters of the United States” under the Clean Water Act. Water restoration advocates fear the conservative-majority Supreme Court will reduce the number of wetlands and other waterways protected by the Clean Water Act. Wetlands help control floods and enhance water quality.

Hovland, a George W. Bush appointee, ruled that there is “little public interest or any efficiency gained” by implementing a new rule before the Supreme Court issues a decision in Sackett v. EPA.

“Common sense dictates that it only makes sense to wait,” Hovland wrote. “There is no urgency to implement the 2023 Rule.”

Hovland cited six paragraphs of testimony from a West Virginia Department of Transportation official in his decision to block the rule.

Jason Foster, Transportation chief development engineer, said in testimony submitted by the states fighting the rule that it would “significantly burden” his agency. Foster predicted increased administrative costs and potential project delays resulting from the rule.

Foster asserted the Department of Transportation would be “significantly and irreparably harmed” if the rule wasn’t stayed, predicting in part it would cause the agency to seek federal guidance regarding jurisdiction on a “burdensome and time-consuming project-by-project and case-by-case basis.”

Hovland concluded the states in the case had shown the rule threatens their “sovereign rights.”

West Virginia Attorney General Patrick Morrisey hailed the preliminary injunction Wednesday.

“We’re glad the court saw the case the way we did: this is an attempt from unelected bureaucrats to expand their own authority by broadly defining Waters of the United States,” said Morrisey, eight days after he announced his candidacy for governor.

The EPA and the Department of the Army predicted their new rule wouldn’t impact longstanding activity-based permitting exemptions provided to the agricultural community by the Clean Water Act.

The rule excluded prior converted cropland, waste treatment systems, ditches, artificially irrigated areas, artificial lakes or ponds, artificial reflecting pools and swimming pools, water-filled depressions and swales and erosional features like gullies from the definition of “Waters of the United States.”

Tributaries and wetlands that significantly affect navigable waters, interstate waters or territorial seas chemically, physically or biologically are subject to the Clean Water Act under the rule. That jurisdiction is consistent with an assessment developed by former Supreme Court Justice Anthony Kennedy in a 2006 case, Rapanos v. United States, known as the “significant nexus” test.

The Chesapeake Bay Foundation, a restoration nonprofit, predicted the new rule would safeguard wetlands and streams critical to restoring rivers like the Cacapon and the Potomac.

The rule replaced a much less protective Trump administration rule criticized by conservationists that had been vacated in court.

Sen. Tom Carper, D-Del., chairman of the Senate Environment and Public Works Committee and a Beckley native, defended the rule, saying in a statement that it “thoughtfully respond[ed]” to agricultural community concerns.

But earlier this month, President Joe Biden had to veto a congressional resolution that would have blocked the rule and reflected lingering concerns with its definition expansion. The Democratic-majority Senate passed the measure in a 53-43 vote.

Sen. Joe Manchin, D-W.Va., chairman of the Senate Energy and Natural Resources Committee, and Sen. Shelley Moore Capito, R-W.Va., top Republican on the Environment and Public Works Committee, voted for the resolution. Reps. Carol Miller and Alex Mooney, both R-W.Va., supported the measure in the House of Representatives.