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More WOTUS legal action to come

Attorneys general in two states say there’s more legal action to come on the current Waters of the United States rule following a preliminary injunction granted this week by a U.S. District Court in North Dakota.

Missouri’s Andrew Bailey says the action indicates the district court judge believes the lawsuit, focused on state rights, has merit.

“When the court is saying things, like the EPA is acting beyond its legal authority and the rule is plagued with uncertainty, that is significant to me because that’s the court saying they’re likely able to make their case here.”

But Bailey does not expect a final ruling from North Dakota until the U.S. Supreme Court decides Sackett vs. EPA.

“The pending case will tell us which test is appropriate to use in analyzing these types of cases.”

South Dakota’s Marty Jackley tells Brownfield farmers and ranchers in 26 states will now follow the WOTUS rule in place prior to the Biden administration’s update.

“The EPA and Army Corps of Engineers won’t make the rules. Now, farmers, ranchers and developers won’t have to get a permit. It’s stopped for now, but the court can change the ruling.”

Jackley says Congress can also address the issue and he is hopeful lawmakers find a way to create a more permanent WOTUS solution.