Barrier island wetlands, just south of Mansfield Cut, South Padre Island, Texas (Photo by Peter Ravella, CNT)

USA - Federal judge blocks water rule in Arkansas, 23 other states

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.'"

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