Federal judge pauses Biden’s WOTUS in 26 states pending high court decision


A creek near Cushing, Oklahoma, will remain under state environmental jurisdiction as long as the WOTUS rule is suspended. (Gaylord News Photo/Brooklyn Wayland)

WASHINGTON – Oklahoma has joined over half of the country in halting a Biden administration rule that would expand federal environmental regulations over the nation’s water bodies, throwing the state’s farmers and ranchers in a legal twilight zone.

The nation has been waffling over how to define the term “waters of the United States,” or WOTUS, in the Clean Water Act since the Obama administration. The newest rule—which went into effect less than a month ago—extends the federal government’s jurisdiction and replaces Donald Trump’s previous rule.

A district court decision in North Dakota stopped the rule from taking effect in 24 additional states—who’s attorneys general all signed on to this lawsuit. The rule was previously paused in Idaho and Texas bringing the total to 26 states.

As lower courts splinter the country into two camps, the Supreme Court is mulling a case that may bring everyone back to the same page. Sackett v. EPA, will clarify what method is appropriate for determining jurisdiction over water bodies. The Court heard oral arguments on Oct. 3, 2022 and a decision is expected later this season.

Michael Kelsey, vice president of Oklahoma’s cattlemen’s association, said this pause is a victory for farmers and ranchers, but the remaining uncertainty hinders landowners from conducting maintenance and projects on their property that involve water bodies—such as building a pond to provide water for their cattle or crops.

“Those are some of the situations that we have heard producers express frustration with not knowing exactly what the rules are at [the Environmental Protection Agency] because they keep changing,” Kelsey said.

These 26 states are operating under Trump’s rule which states that the federal government is responsible for regulating navigable waters and the rest is for state and local regulation.

The other 24 states began enforcing President Joe Biden’s rule, which utilizes a test that determines jurisdiction on a case-by-case basis. This method is dubbed the “significant nexus test” and is applicable to any water body on private property. The test looks to see if a water body originates from navigable waters putting it under federal jurisdiction.

“[The ruling] recognizes that a one-size-fits-all mentality is not the best,” Kelsey said.  “What works for water management in Idabel, which is in the extreme southeast part of the state, is not the same for Guymon, which is way up in the panhandle.”

Oklahoma Rep. Frank Lucas (R-Cheyenne) praised the North Dakota ruling.

“America’s farmers, ranchers, and landowners deserve a WOTUS definition that is fair and provides regulatory clarity and certainty to agriculture and businesses,” Lucas said in a statement.

The House and Senate both passed a resolution last month to kill Biden’s new rule. All seven members of the Oklahoma congressional delegation voted in support of the resolution, which the president vetoed this month.

“The resolution would leave Americans without a clear definition of “Waters of the United States,” Biden said in a statement. “The resolution would also negatively affect tens of millions of United States households that depend on healthy wetlands and streams.”

The National Cattlemen’s Beef Association is hosting state affiliates in Washington, D.C. from April 24-26 to lobby with Congress—indicating “waters of the United States” as a key topic. Kelsey said the Oklahoma cattlemen’s association will be there and looks forward to the conversations.

Kelsey believes the Supreme Court’s decision may provide clarity, but the rules will continue to be rewritten by each new presidential administration. He said ultimately farmers and ranchers just want consistency.

“How long is this rule going to be in effect? If we get a new president, is he or she going to rescind it and then we get another new rule?” Kelsey said. “I know I’m being redundant, but we just really need this certainty.”