In response to a request for preliminary injunction filed by the attorneys general of 24 states (including Ohio), a federal judge in North Dakota granted a preliminary injunction blocking President Biden’s recently-released WOTUS rule in those 24 states. In combination with the ruling from a few weeks ago blocking the new WOTUS rule in Texas and Idaho, the latest WOTUS rule is now blocked in more than half of all states (including Ohio). For those states where the new rule is blocked, which include 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 pre-2015 guidance (fka post-Rapanos guidance, aka pre-Obama rule, pre-Trump rule, and pre-Biden rule) is now controlling (again).
As Judge Hovland explained in his Order, whether the preliminary injunction converts to a permanent injunction will largely depend on the ruling in the Sackett case, currently pending before the United States Supreme Court. The injunction would also be lifted if the government successfully appeals the order, although whether the government appeals or the likelihood of a successful appeal remains to be seen.
In the meantime, the U.S. is once again regulated by a patchwork of WOTUS definitions. Communication with federal agencies is especially important to maintain compliance for any projects potentially impacting state and federal waters. Reach out to Nat Morse, Kristin Watt, Ryan Elliott, or your Vorys attorney for any questions related this topic.