Judge Halts Federal Water Regulation In Two States

U.S. District Judge Jeffrey Vincent Brown of Texas has paused the Biden administration’s Waters of the United States (WOTUS) rule in two states as part of a preliminary injunction. While approximately half of all U.S. states are challenging the regulation, the judge’s ruling only applies to states in Judge Brown’s district: Texas and Idaho.

The rule went into effect in the rest of the country on Monday, March 20. As MSCI members may recall, this rule will govern the country’s wetlands and waterways. Specifically, it defines which waters get federal protections that would require businesses to obtain a permit for activities like construction that could damage water quality — and which do not.

The final rule, which, once again, now is in effect for most U.S. states, restored the standard that was in place prior to 2015 under the Clean Water Act (CWA) for traditional navigable waters, territorial seas, interstate waters, and upstream water resources that significantly affect those waters.

MSCI opposes the most recent iteration of this rule. As such, we believe the injunction is a first step toward reversing ambiguous, unnecessary changes to WOTUS, which have added new layers of permitting complications and uncertainties that will result in additional costs, burdens, and delays, and could expose manufacturing and metals facilities to needless, wasteful, and unnecessary administrative actions and litigation.

Some lawmakers in Congress are trying to take action on this issue as well. Indeed, the U.S. House of Representatives recently voted to overturn the rule earlier this month. Unfortunately, the U.S. Senate is unlikely to consider that measure and President Joe Biden has said he would veto if it ever did reach his desk.