North Dakota court blocks Biden waters rule

by Zack Budryk - 04/12/23 1:40 PM ET

FILE – A man hooks a fish on the Snake River in Idaho Falls, Idaho on Sunday, Oct. 11, 2020. Some top officials in Idaho are raising alarms over the Republican attorney general’s decision not to join a 24-state lawsuit against new waterway protections by the Biden administration. Instead, the state will be joining another lawsuit filed in Texas, which Idaho Attorney General Raul Labrador’s office says is a better fit for his state’s interests. Waterways like Idaho’s Big Lost River could be impacted by the newest version. The waters eventually flow into the Snake River, traveling more than 1000 miles (1600 kilometers) to the Pacific Ocean. (John Roark/The Idaho Post-Register via AP, File)

A federal North Dakota court on Wednesday issued a preliminary injunction against the Biden administration’s proposed Waters of the United States (WOTUS) rule in 24 states whose Republican attorneys general sued over it.

In the order, Judge Daniel L. Hovland of the District of North Dakota, a former President George W. Bush appointee, ruled that the Environmental Protection Agency (EPA) has “arguably acted beyond [its] statutory authority” under the Clean Water Act with the rule. Hovland wrote that there are “serious questions” regarding the 2023 rule’s interpretation of “interstate waters” to include those not connected to navigable waterways.

Hovland also took issue with the 2023 rule’s treatment of tributaries, writing that under the latest rule, “a watercourse can qualify as a tributary so long as it makes its way, ‘directly or indirectly,’ to a traditional navigable water, territorial sea, or interstate water by any wet or dry waterway, such as wetlands or ditches.”

In addition to the lawsuit, the WOTUS rule was the subject of a Congressional Review Act (CRA) resolution overturning it. Under the CRA, a simple congressional majority can vote to overturn a rule imposed by the executive branch. Congress passed the CRA resolution, which Biden vetoed last week.

Separately, last October the Supreme Court heard oral arguments in the case of Sackett v. Environmental Protection Agency, which seeks to establish whether wetlands are under the jurisdiction of the Clean Water Act. The court’s ruling is still pending.

“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,” West Virginia Attorney General Patrick Morrisey (R), who led the lawsuit, said in a statement. “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.”

The Hill has reached out to the EPA for comment.

Tags Biden administration EPA George W. Bush north dakota Patrick Morrisey