Federal judge blocks Biden administration definition of ‘waterway’ under Clean Water Act

BISMARCK, N.D. (CN) — A federal judge in North Dakota on Wednesday paused a new Biden administration rule which sought to redefine what constitutes a waterway under the Clean Water Act.

West Virginia and a coalition of 23 other states challenged the rule, claiming it grants too much federal authority the U.S. Environmental Protection Agency and the Army Corps of Engineers.

"A balancing of the harms and an analysis of the public interest supports a finding that the risk of harms to the states is great,” U.S. District Judge Daniel Hovland wrote in the 45-page opinion. 

Hovland found no urgency to implement the new rule before the U.S. Supreme Court has had the opportunity to rule in Sackett v. EPA.

Sackett is a similar suit before the Supreme Court out of the Ninth Circuit which seeks to set a proper test for determining whether wetlands are "waters of the United States" under the Clean Water Act. The Supreme Court decision is expected in June, according to Hovland.  

Hovland's ruling comes on the heels of a ruling in a third suit in Texas. The Lone Star State teamed up with Idaho to fight the rule, claiming the amended definition of waterway is beyond what Congress intended in the Clean Water Act.

The North Dakota lawsuit, filed in February, says the Biden administration’s move is an overreach which “embraces vague standards with little justification and minimal consideration of cost."

The coalition of states also offered up examples of the harms that would befall property owners and certain vocations should the rule be left intact.

“If the final rule is left in place, then ranchers, farmers, miners, homebuilders and other land owners across the country will struggle to undertake the simplest of activities on their own property without fear of drawing the ire of the federal government,” the states claimed.    

Farmers and ranchers have been at the forefront of the issue with many groups concerned the new rule’s definitions could include normally dry areas which hold water after rainfall, according to AgWeek. 

The American Farm Bureau Federation joined as an intervenor plaintiff with the states and weighed in prior to Wednesday's ruling. 

“America’s farmers and ranchers need a clear, consistent, and transparent WOTUS rule so they can continue to protect our natural resources, operate with certainty, and create jobs in their communities. Continual revisions, remands, and reintroductions of WOTUS definitions only sow confusion and ultimately dissuade future investment in climate-smart agriculture,” said federation president Zippy Duvall. “However, the new definition of WOTUS exceeds congressional authority in multiple respects, ignores recent Supreme Court case law interpreting the Clean Water Act, and will be impossible to implement consistently in the field.”

North Dakota Republicans heralded the injunction as a victory in the ongoing battle against federal control. 

“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,” said North Dakota Governor Doug Burgum. “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.”

U.S. Senator Kevin Cramer, a Republican from North Dakota offered pointed criticism of current and previous administrations.

"Beginning with President Obama, and furthered by President Biden, it is the environmentalist’s dream to regulate our water to the raindrop," Cramer said in a statement. "Once again North Dakota is among the leaders in the fight to remind them such actions are illegal. Thanks to Attorney General Wrigley, our state is spared from federal mediocrity."

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