A federal judge in North Dakota has blocked the Biden administration’s new definition of “waters of the United States” from taking effect in 24 states.
Judge Daniel Hovland of the District of North Dakota issued his ruling on April 12, granting 24 states who sued the Environmental Protection Agency over the rule in February a preliminary injunction after finding they have “persuasively shown that the new 2023 rule poses a threat to their sovereign rights and amounts to irreparable harm.”
The North Dakota injunction follows a bill by Congress to overturn the rule, followed by a veto by President Joe Biden on April 6.
The Biden administration’s rule took effect March 20; the complaint was filed Feb. 16. U.S. District Court Judge Jeffrey Vincent Brown had already invalidated the Biden rule in Texas and Idaho, in Texas v. EPA, after finding they are likely to successfully challenge the rule’s imposition of Clean Water Act jurisdiction over all interstate waters regardless of navigability.
Biden’s EPA issued the rule even though the Supreme Court is currently considering a case, Sackett v. EPA, whose outcome could supersede both the new WOTUS definition and all previous ones. The Sacketts have been fighting the EPA for 15 years over a permit to do fill-in work as part of their construction of a house in Idaho. They were initially threatened with millions of dollars in fines for “polluting a waterway,” and won the right to pursue their case against the EPA in a separate Supreme Court ruling in 2012. The Sacketts have consistently argued that their property has no hydrological connection to a navigable waterway and that the EPA thus has no jurisdiction under the Clean Water Act.
Attempting to resolve a similar case, the Supreme Court made a confusing split 4-4-1 ruling in Rapanos v. United States in 2006, with the tie-breaking separate opinion by Justice Anthony Kennedy arguing that a property had to have a “significant nexus” to a regulated waterway to be regulated itself. The term has caused confusion, more lawsuits and conflicting rulings, preparing the way for a major reconsideration that many legal experts on all sides of the issue hope to see in the ongoing Sackett case.
Farm interests, among many others, have consistently opposed attempts to enact the wider definition of “waters of the U.S.” suggested by the “significant nexus” text because they fear any such expansion would amount to EPA jurisdiction over virtually all productive land. Plaintiffs in the latest North Dakota injunction included the American Farm Bureau Federation, American Petroleum Institute, American Road and Transportation Builders Association, National Cattlemen’s Beef Association, National Pork Producers Council, the U.S. Poultry and Egg Association, and the farm bureaus of most ag states.
Judge Hovland noted the controversies over WOTUS in his ruling, writing, “Suffice it to say the Clean Water Act, and the varied and different definitions of ‘waters of the United States,’ have created nothing but confusion, uncertainty, unpredictability, and endless litigation throughout this country to date.” The Supreme Court itself has “struggled” with the definition, he said.
North Dakota Gov. Doug Burgum applauded the decision, writing, “Today’s decision by Judge Hovland rightly blocks the Biden administration’s overreaching rule that would unlawfully extend federal jurisdiction to nearly every stream, pond and wetland in North Dakota. This rule would create confusion and restrict activities for farmers, ranchers and other landowners while driving up costs for consumers.”
David Murray can be reached [email protected].
