States seek to stop WOTUS rule; judge who called Obama-era rule 'absurd' is off the case

FARGO, N.D. — The states that are suing the EPA over its water protection rules have asked for an injunction in the case, but the judge originally assigned to the case has removed himself.

The case regarding the 'waters of the U.S.' definition, or WOTUS, was filed in North Dakota and originally assigned to U.S. District Judge Peter Welte. Without citing a reason, Welte on Friday, Feb. 24, recused himself from the case.

Welte, while working as an attorney and farmer in North Dakota's Grand Forks County, once referred to the EPA's WOTUS rule under President Barack Obama as "absurd," among other comments on WOTUS, in columns written for Agweek magazine.

The new rule put forth by Biden administration, which is set to take effect March 20, is cited as being similar to the 2015 Obama rule.

In court documents filed Feb. 21, a motion asking for an injunction reads in part:

“In all the ways that matter, the Final Rule is the 2015 Rule repackaged. Its expansive standards deploy amorphous tests to place under federal control most any water (or land, or intermittent moisture) so long as a loose connection can conceivably tie it to navigable-in-fact or interstate waters.”

In an interview with Agweek, Iowa Attorney General Brenna Bird put it more simply as, “It's the same power grab, just a different decade.”

West Virginia Attorney General Patrick Morrisey filed the case in federal court in Fargo but cited North Dakota, Iowa and Georgia as other states helping to lead the court battle.

The case has been reassigned to U.S. District Judge Daniel Hovland in Bismarck, North Dakota.

North Dakota Attorney General Drew Wrigley, in an interview with Agweek the day before Welte's recusal, said he hoped the request for an injunction would be ruled upon quickly.

“We do put this forward with urgency because when the regulation, overregulation, and onerous burdensome overregulation of this nature goes forward, its impact is immediate, and the impact is negative,” Wrigley said.

He added: “We've got a very conscientious court here in North Dakota, and I trust that they'll be giving due attention in the inappropriate amount of time.”

In his 2017 application to become a federal judge , Welte said he wanted to remain involved in his family farm in Grand Forks County. Prior to his nomination to the bench, Welte was an unpaid columnist for Agweek.

On his application, he listed the columns he wrote for Agweek on WOTUS and other farm topics under a section for “Published Writings and Public Statements.” Welte became a U.S. District Court judge for the District of North Dakota in 2019. After West Virginia and 23 other states filed a challenge to WOTUS in federal court in Fargo on Feb. 16, the case was assigned to Welte.

WOTUS was a matter well known to Welte, as show in his Agweek columns.

In a column posted to Agweek.com on Oct. 20, 2015 , Welte wrote of the Obama administration’s WOTUS rule:
“The new rule broadens the definition of ‘waters of the U.S.,’ and permits EPA to regulate farmers who attempt merely minimal drainage of even small potholes, because EPA would deem such action to be subject to its jurisdiction as drainage that affects the waters of the U.S.

“This is just absurd. Farmers of both political stripes are generally weary of EPA’s hostile posture to farmers’ attempts to do their jobs.”

Farmers and agricultural groups see the broad WOTUS interpretation as a threat to their ability to farm without violating the federal Clean Water Act, where the term “waters of the U.S.” originated. It has since proven to be difficult to define, and several WOTUS cases have risen to the Supreme Court level. The Supreme Court is expected to rule on a WOTUS-driven case, Sackett vs. EPA, this year.

The attorneys general in the case filed in North Dakota often use the word “overreach” to describe how the WOTUS definition has grown beyond navigable and interstate waters to possibly include ditches and prairie potholes that don’t always hold water.

A ruling in 2015 by U.S. District Judge Ralph Erickson, also of the District of North Dakota, kept the Obama-era rule from being enforced nationwide.

Under President Donald Trump, the EPA followed an executive order that much more narrowly defined what is a WOTUS.

Welte, in an Agweek column on March 6, 2017, called the executive order “sweeping and impressively worded” and called it a “profound victory for farmers.”

In another column on Sept. 9, 2015, after Erickson’s ruling, Welte wrote, “As most farmers will testify, the present (Obama) administration has been hostile toward farmers when it comes to the WOTUS issue, …”

Trump’s executive order led to the EPA’s Navigable Waters Protection Rule, but it, too, was eventually thrown out by a court in Arizona.

Hovland has his own history with WOTUS. In 2018, he ruled against the Environmental Protection Agency and U.S. Army Corps of Engineers during the legal ping-pong over WOTUS.

Also that year, Hovland ruled that Iowa be allowed to join North Dakota and 11 other states that sought an injunction on EPA's WOTUS rule.

For a time, the Obama-era rule was enforced in some states, but not others.

The EPA eventually went back to using the pre-2015 WOTUS definition and went back into the rule-making process, “in order to better protect our nation’s vital water resources that support public health, environmental protection, agricultural activity, and economic growth. The agencies remain committed to crafting a durable definition of ‘waters of the United States’ that is informed by diverse perspectives and based on an inclusive foundation,” according to the EPA.

The EPA's most recent WOTUS definition was announced in late December 2022.