Federal judge in North Dakota halts WOTUS in 24 states

BISMARCK, N.D. — A federal judge in North Dakota has stopped the Biden administration's definition of "waters of the U.S." in 24 states.

U.S. District Judge Daniel Hovland on Wednesday, April 12, granted a preliminary injunction stopping the new 2023 WOTUS rule, pending the outcome of the lawsuit filed by the 24-state coalition in U.S. District Court in North Dakota. The lawsuit is led by West Virginia .

The injunction stops the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers from implementing or enforcing the newly revised definition of the Waters of the United States in North Dakota and 23 other states — Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia, and Wyoming.

A federal judge in Texas issued an injunction in March stopping the rule from going into effect there and in Idaho. For the rest of the nation, the latest iteration of WOTUS , which the EPA and court system have spent decades trying to pin down, became the law of the land on March 20.

The WOTUS issue arises from the federal Clean Water Act of 1972. The term “waters of the U.S.” appears in the federal Clean Water Act, which empowers the Environmental Protection Agency and the Army Corps of Engineers with protecting those waters. But the act does not clearly define what is covered by WOTUS, though it does mention both “navigable” and “interstate” waters.

Over the years, which waters are governed by the act has been the subject of multiple cases that have risen to the Supreme Court level, the most recent being a WOTUS test case in Idaho, Sackett vs. EPA , that is awaiting a Supreme Court ruling. The Biden administration has been criticized for not waiting until a ruling in Sackett , which the Supreme Court heard last fall, before trying to enforce its own definition.

The National Cattlemen's Beef Association is among the opponents of the new rule who have criticized the new rule for jumping ahead of the Sackett decision.

“Once again, the courts have affirmed that the Biden administration’s WOTUS rule is overreaching and harmful to America’s beef farmers and ranchers,” said NCBA President Todd Wilkinson, a South Dakota cattle producer. “Cattle producers in 26 states now have some additional certainty while this rule is being litigated and we are optimistic that the Supreme Court will provide nationwide clarity on the federal government’s proper jurisdiction over water.”

American Farm Bureau Foundation has been involved in WOTUS lawsuits and also was pleased with the news, with President Zippy Duvall calling it a "win for farmers." He said the right thing for EPA and the U.S. Army Corps to do would be to rewrite the rule "to draw a bright line of jurisdiction."

“This isn’t just a philosophical dispute: farmers and ranchers in the remaining states are left with no clear way to determine where federal jurisdiction begins and ends on their own property. The rule creates a fuzzy, subjective assessment that’s unfair to landowners," he said in a statement. “Here’s the bottom line: clean water is important to all of us, and farmers and ranchers certainly share the goal of caring for our natural resources — we depend on them for our livelihoods — all we’re asking for is a sensible rule that farmers can interpret without hiring a team of lawyers.”

North Dakota's Congressional delegation was quick to applaud the news.

U.S. Sen. John Hoeven, R-N.D., called the injunction "a welcome relief from the ever-growing, burdensome regulations being pushed by the Biden administration." He also noted he remains hopeful the Sackett decision will "resolve the uncertainty created by this federal overreach."

“This expanded WOTUS rule would impose higher costs on critical industries, including agriculture, energy and construction, leading to greater inflation throughout our economy. That’s the last thing our nation needs," he said in a statement.

Rep. Kelly Armstrong, R-N.D., said the "injunction is great news for North Dakota’s ag producers as they gear up for planting season."

"The Biden administration’s WOTUS rule is a red tape disaster that does nothing to keep our water clean. I’m hopeful the court will ultimately throw it out,”  his statement said.

Sen. Kevin Cramer, R-N.D., said it's the "environmentalist’s dream to regulate our water to the raindrop."

"Once again North Dakota is among the leaders in the fight to remind them such actions are illegal. Thanks to Attorney General (Drew) Wrigley, our state is spared from federal mediocrity,” his statement said. 

State officials from the region also cheered the news.

“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,” North Dakota Gov. Doug Burgum said in a statement. “North Dakota has some of the cleanest air and water in the nation because we responsibly develop our natural resources and properly exercise our state’s authority to protect our own waters from pollution.”

“I applaud the decision today by Judge Hovland,” North Dakota Agriculture Commissioner Doug Goehring said in a statement. “North Dakota properly, sensibly and consistently protects the waters of our state. The revised WOTUS definition is a blatant overreach of authority that significantly and unlawfully expands federal control over our state’s sovereign land and water resources.”

South Dakota Attorney General Marty Jackley said the WOTUS rule "would place an undue burden on South Dakotans to comply with such unreasonable restrictions."

“Today’s ruling is a tremendous win for our farmers and ranchers and for the premise that the States are better positioned than a distant Washington to protect the environment within our own State,” he said in a statement.