Federal Judge Temporarily Blocks New Biden WOTUS Rule; Wisconsin AG Todd Rokita Takes Credit

By Jacob Fischler, Indiana Capital Chronicle

April 13, 2023

A federal judge in North Dakota on Wednesday blocked in 24 states the Biden administration’s newly effective definition of waters that can be regulated under the Clean Water Act.

U.S. District Judge Daniel Hovland, a George W. Bush appointee on retired status in the North Dakota District, issued a preliminary injunction in a case two dozen Republican state attorneys general brought against the U.S. Environmental Protection Agency and the Army Corps of Engineers.

The ruling for now blocks enforcement of a rule to expand what the EPA could consider “waters of the United States,” or WOTUS, under the Clean Water Act in Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, South Dakota, Tennessee, Virginia, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, and Wyoming.

“With our lawsuit, we aim to protect Hoosiers’ jobs, property and freedom from the Biden administration’s excessive regulations,” Indiana Attorney General Todd Rokita said. “Our legal victory in U.S. district court proves that our cause is justified and valid. We will continue fighting for free enterprise and individual liberty.”

The rule took effect March 20, despite bipartisan objections from Congress.

The Clean Water Act was meant to apply to “navigable waters,” Hovland said.

But the Biden administration definition ignored that standard, removing any limit on federal regulation of any waterway that crosses a state boundary. That went beyond the statutory meaning of the Clean Water Act and raised “serious federalism questions and concerns,” Hovland said.

“The exercise of jurisdiction over all rivers, lakes, and other waters that flow across state boundaries, no matter how small or isolated and regardless of navigability is constitutionally troublesome,” he wrote. “There is nothing in the text of the Clean Water Act that supports making every wetland, stream, or other water crossing a border subject to federal jurisdiction.”

As the EPA and Army Corps review their options, they are enforcing the pre-2015 definition of waters of the United States in the 24 states, an EPA spokesperson said in a written statement Wednesday.

“The agencies continue to believe the rule, which is informed by the text of the relevant provisions of the Clean Water Act and the statute as a whole, as well as the scientific record, relevant Supreme Court case law, input from public comment, and the agencies’ experience and technical expertise after more than 45 years of implementing the longstanding pre-2015 regulations defining waters of the United States, is the best interpretation of the Clean Water Act,” the spokesperson wrote.

“The agencies remain committed to establishing and implementing a durable definition of ‘waters of the United States’ informed by diverse perspectives,” the spokesperson added. “Our goal is to protect public health, the environment, and downstream communities while supporting economic opportunity, agriculture, and industries that depend on clean water.”

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