EPA secures time to amend WOTUS rule after federal judge grants stay in lawsuit

A federal judge has granted the U.S. Environmental Protection Agency's request for a stay this week in a Waters of the U.S. lawsuit pursued by South Dakota and 23 other states.

U.S. District Court Judge Daniel Hovland issued the order Tuesday, pausing the case until the Biden administration publishes a new rule in the Federal Register, court filings in the federal Eastern District of North Dakota show.

The EPA filed a motion for the stay on June 26. The 24 states did not oppose the request.

The American Farm Bureau Federation and other intervening agricultural groups that are also suing the EPA, however, did object to the request.

Ag groups have also requested the WOTUS rule to be thrown out in its entirety in a motion filed June 28 through the federal District Court for Southern District of Texas.

"WOTUS" is a federal rule regulated by the EPA and the U.S. Army Corp of Engineers that determines which bodies of water such as lakes and rivers are reserved enhanced protections under the Clean Water Act, a law that governs the discharge of pollutants into U.S. waters.

The Biden administration revised the rule to expand federal protections to "adjacent wetlands" and "additional waters" ― certain local lakes, streams, tributaries, wetlands, etc. This was, in part, determined by the agencies through the "relatively permanent" and "significant nexus" tests.

The former applies to "relatively permanent, standing, or continuously flowing waters" connected to traditional water bodies, like large rivers or lakes, seas and interstate waters.

The latter applies to certain water bodies that significantly affect the water quality of larger downstream waters.

However, the Supreme Court narrowed the EPA's regulatory authority on WOTUS in May after siding with an Idaho couple in Sackett v. EPA.

An opinion written by Justice Samuel Alito, who was joined by four other conservative justices, set a more limited standard for what constitutes "waters of the U.S.," particularly in regards to which wetlands fall under the future rule.

The Tuesday stay gives the EPA more time to amend the Biden-era rule to be consistent with the Sackett ruling. Enforcement of WOTUS is currently enjoined in 27 states, including South Dakota.

Based on court filings, the agency plans to issue a new WOTUS rule that "may resolve, or at least narrow, the issues in this case" by Sept. 1.

This article originally appeared on Sioux Falls Argus Leader: Federal judge orders stay in WOTUS lawsuit