AGC-backed lawsuit leads a federal court to halt the Biden Administration’s expansion of federal permitting requirements to more construction projects in 24 new states in addition to AGC-backed freezes in Texas and Idaho.

An AGC-backed lawsuit has led the U.S. District Court for the District of North Dakota to issue a preliminary injunction of the Biden Administration’s 2023 “Waters of the United States” (WOTUS) rule in 24 states (see below) on April 12. Adding to the two-state injunction the association secured from a Texas court, the 2023 WOTUS rule is now temporarily blocked in over half the country: 26 states in all.

As a reminder, AGC and 17 other industry groups are a party to the North Dakota and Texas cases. Another challenge was brought in Kentucky, but that case was dismissed (AGC is not a party to that case).

Some quick highlights from the attached 45-page order:

• “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 new “relatively permanent standard” test “is far from understandable.” Page 22.
• “The EPA’s 2023 Rule will require States, landowners, and countless other affected parties to undertake expensive compliance efforts when their property may implicate navigable waters in ill-defined ways. The phrase ‘waters of the United States’, a term that has been hopelessly defined for decades, remains even more so under the 2023 Rule. It is doubtful Congress endorsed the current efforts to expand the limits of the Clean Water Act… 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.
• “This Court agrees there are serious constitutional concerns triggered by the implementation of the EPA’s new 2023 Rule.”

AGC has secured injunctions in the following states: 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.  In those states, the 1986/1988 regulatory definition of WOTUS is temporarily back in place, at least until the courts make a final decision on the legality of the rule.

AGC will continue to fight for a nationwide injunction of the 2023 WOTUS rule, as President Biden recently vetoed the bipartisan bill to repeal the regulation. While there are not likely enough votes in Congress to override the veto, the bipartisan votes to repeal the rule in the House and Senate underscore AGC’s legal argument that Congress did not grant the Administration statutory authority to put forth this sweeping regulation.