Just before the July 4th holiday, I was wondering out loud what was to be gained by having a Federal District Court decide the merits of a challenge to EPA's eighth attempt to determine the reach of the Clean Water Act. After all, in Sackett v. EPA, the nation's highest court had already rejected one of the legal cornerstones for the anything but durable regulation and EPA is already working on its ninth attempt at a durable rule that accounts for the Supreme Court's ruling.
Well it seems Federal District Court Judge Brown in Texas was wondering the same thing at the same time because he has now stayed a challenge by the States of Idaho and Texas to EPA's already moribund regulation over the objections of those States and various NGOs. Since three Judges of the Sixth Circuit Court of Appeals had already stayed a nearly identical challenge to the EPA regulation by the Commonwealth of Kentucky, the only live challenge to EPA's soon to be revised regulation is in North Dakota where Republican Attorneys General and some of the same NGOs that intervened in the Texas case are urging the Federal District Court Judge there to decide their challenge on the merits. Hopefully common sense will prevail in North Dakota too.
But I was surprised to read Sam Hess's report in Inside EPA that EPA has appealed the District Court injunctions preventing EPA and the Corps of Engineers from attempting to enforce the "old" Waters of the United States regulation that they've already agreed requires revising. The Corps of Engineers has already said that it needs to be out of the jurisdictional determination business until EPA and the Corps rework the Waters of the United States regulation to account for the Supreme Court's Sackett decision. It is hard to reconcile that conclusion, and its effect according to the Corps, with the suggestion that the "old" Waters of the United States regulation should be law in the meantime. It would seem that we'd all be better served if EPA and the Corps focused on that new regulation instead of engaging in the continued defense of the soon to be old one.
Judge Jeffrey Brown of the U.S. District Court for the Southern District of Texas filed a July 10 order granting EPA and the Army Corps of Engineers’ motion to stay the suit brought by Texas, Idaho, and numerous industry groups against the administration’s 2023 WOTUS rule and rejecting the plaintiffs’ push to instead seek full vacatur of the policy. Brown’s order says the case will be stayed until the agencies publish a final rule amending the WOTUS definition in the Federal Register. At that point, the parties in State of Texas, et al., v. EPA, et al., will have 21 days to submit a proposal to govern further proceedings in the case.
https://insideepa.com/daily-news/judge-stays-texas-wotus-litigation-despite-state-industry-opposition
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