Judge Temporarily Blocks Enforcement of Biden’s Water Rule in 24 States

The historic Augusta Canal, the showstopper of Augusta Canal National Heritage Area, runs the length of downtown Augusta and is part of the Savannah River waterways that separate the Peach State of Georgia from the Palmetto State of South Carolina. Ralph Daniel/Explore Georgia/TNS

A federal judge in North Dakota has temporarily blocked the implementation of the Biden administration’s controversial “Waters of the United States” (WOTUS) rule, granting the request of a coalition of 24 states and more than a dozen industry groups.

On Dec. 30, the Environmental Protection Agency (EPA) announced its final “Revised Definition of Waters of the United States” rule, broadening what types of water sources were subject to federal regulation under the Clean Water Act.

In issuing the April 12 injunction (pdf), U.S. District Judge Daniel L. Hovland held that the plaintiff states had successfully demonstrated that the new rule “poses a threat” to their sovereignty and amounts to “irreparable harm.”

“One of the purposes of a preliminary injunction is to preserve the status quo,” Hovland wrote. “The ripple effects caused by the 2023 Rule strongly favor maintaining the status quo for now. … The Court finds that a far broader segment of the public would benefit from a preliminary injunction because it would ensure that federal agencies do not extend their power beyond the express delegation from Congress.”

Further noting that the matter was also being weighed by the Supreme Court in a similar case, the judge held, “Common sense dictates that it only makes sense to wait.”

West Virginia Attorney General Patrick Morrissey, who led the states’ challenge to the rule, said the judge’s ruling marked a victory for states’ rights.

“This is a victory for the states because this rule, if allowed to be implemented, will upset the balance of power between the states and the federal government without clear statement from Congress,” Morrisey said in a statement. “It’s a decades-long effort by the EPA to regulate purely intrastate waters without the explicit consent of lawmakers. It creates unneeded delays and costs for farmers, contractors, ranchers, and anyone who cares about economic activity.

“You cannot regulate a puddle as you do a river, and doing so will never give us cleaner water, which is what we all want,” he added. “This rule would harm jobs and economic growth by taking jurisdiction from states and asserting federal authority over nearly any body of water, including roadside ditches, short-lived streams, and many other areas where water may flow only once every 100 years.”

Other states involved in the lawsuit include North Dakota, Georgia, Iowa, Alabama, Alaska, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, and Wyoming.

An additional 18 intervenor-plaintiffs have also joined the suit, including such groups as the American Farm Bureau Federation, National Association of Realtors, National Cattleman’s Beef Association, National Mining Association, and the Public Lands Council.

A similar injunction granted last month by a federal judge in Texas has already blocked the rule’s enforcement in Texas and Idaho.

The latest ruling also comes less than a week after President Joe Biden’s veto of a joint resolution of the House and Senate that would have repealed the controversial rule.

“I just vetoed a bill that attempted to block our Administration from protecting our nation’s waterways—a resource millions of Americans depend on—from destruction and pollution,” Biden wrote on Twitter.

“Let me be clear: Every American has a right to clean water,” he added. “This veto protects that right.”

But House Speaker Kevin McCarthy (R-Calif.) disagreed with that assessment, writing: “Incorrect. Biden’s overreaching WOTUS rule jeopardizes the livelihoods of American farmers and small businesses.”

On Wednesday, the EPA said in a statement that it was reviewing the court’s decision but stood by the new regulations as the “best” interpretation of the Clean Water Act.

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

Nathan Worcester and the Associated Press contributed to this report.