In a Win for NAHB Members, Biden WOTUS Rule Struck Down in 26 States

In a major victory for developers and landowners, the U.S. District Court for the District of North Dakota has ruled that the Biden “waters of the U.S.” (WOTUS) rule cannot be implemented in 24 states while the challenge to the rule moves forward.

NAHB and 17 other industry groups are a party to this case and the court ruling adds to the two-state preliminary injunction we received by a Texas court several weeks ago, meaning that the Biden WOTUS rule cannot currently be enforced in 26 states – more than half the nation.

A third challenge that NAHB did not participate in was brought in Kentucky, but that case was dismissed.

In its 45-page ruling, the North Dakota court cited several arguments that the states made in their request for a preliminary injunction:

• “The Court finds that the new 2023 Rule is neither understandable nor ‘intelligible,’ and its boundaries are unlimited.”
• “The treatment of tributaries under the new 2023 Rule is suspect.”
• “The Court notes that the treatment of wetlands is plagued with uncertainty.”
• “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.”
• “This Court agrees there are serious constitutional concerns triggered by the implementation of the EPA’s new 2023 Rule.”

As a result of the North Dakota and Texas court decisions, injunctions against the Biden WOTUS rule are now in effect 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.

The U.S. Supreme Court will also be issuing a ruling in the coming weeks in the case of Sackett v. EPA, which is squarely focused on the legality of the significant nexus text, a critical part of the Biden WOTUS rule.

A verdict for Sackett would mean that the administration would essentially have to scrap its WOTUS rule. NAHB continues to call on the administration to craft a new WOTUS rule that restores common sense and predictability to the federal wetlands permitting process while maintaining environmental protection of our nation’s waterways.