In a ruling on April 12, 2023, the U.S. District Court for the District of North Dakota enjoined the 2023 WOTUS Rule in 24 states. The rule is now halted in 26 states after a Texas court issued an injunction in Texas and Idaho several weeks ago.
The North Dakota court issued an opinion that the 2023 WOTUS rule impacts landowners with “expensive compliance efforts” and found “little that is intelligible about the 2023 Rule and the broad scope of its jurisdiction.”
This is a significant step after President Biden this week vetoed a bipartisan congressional resolution to stop the rule from moving forward.
“NAR and RLI are pleased that the court recognized the harm this rule will do to real estate and land markets across the country,” said Russell Riggs, RLI’s Government Affairs Liaison. “We will continue to push the Administration to reconsider this harmful regulation.”
The interests of landowners, developers, farmers, ranchers, and more are being represented through The National Association of REALTORS® and 17 other industry groups as part of a WOTUS litigation coalition. The coalition is party to the North Dakota and Texas cases. Another challenge was brought in Kentucky, but that case was dismissed (NAR is not a party to that case).
Here are a few quick highlights from the opinion (you can read the full opinion here):
- "The Court finds that the new 2023 Rule is neither understandable nor 'intelligible,' and its boundaries are unlimited." Page 19.
- "The treatment of tributaries under the new 2023 Rule is suspect." Page 21.
- "The Court notes that the treatment of wetlands is plagued with uncertainty." Id.
- "The EPA's 2023 Rule will require States, landowners, and countless other effected parties to undertake expensive compliance efforts when their property may implicate navigable waters in ill-defined ways. There is little that is intelligible about the 2023 Rule and the broad scope of its jurisdiction. The EPA's interpretation of the 2023 Rule does not provide any clarity nor equate with an intelligible principle to which the States can easily conform." Pages 23-24.
The following states now have injunctions: Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming.
NAR’s lawsuit in TX to overturn the rule permanently will continue, as well as other lawsuits to enjoin a PI in other states.