Environmental Regulation
Federal Judge Blocks Biden WOTUS Rule in 24 States
In a victory for opponents of a Biden administration rule widening federal jurisdiction under the Clean Water Act, a federal judge has blocked a new regulation from taking effect in 24 states that sought to have it barred.
In a decision issued on April 12, Judge Daniel L. Hovland of the U.S. District Court in North Dakota, approved a temporary injunction against the rule. He said the Biden regulation’s definitions are “murky” and “unintelligible” and that “its boundaries are unlimited.”
The decision is the third in federal courts in recent weeks dealing with Waters of the United States, or WOTUS, and the second decided in favor of the states.
On March 19, a federal district judge in Galveston, Texas, granted an injunction barring the administration's regulation, but only in Texas and Idaho.
The rule, published in January, took effect March 20.
The states in which the injunction applies under Hovland's ruling are: West Virginia, 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.
Eighteen construction and other business organizations also intervened in the case, siding with the states, including the American Road & Transportation Builders Association, Associated General Contractors of America, National Association of Home Builders and the National Stone, Sand & Gravel Association.
Looking for quick answers on construction and engineering topics?
Try Ask ENR, our new smart AI search tool.
Ask ENR →
Reactions Pro and Con
North Dakota Gov. Doug Burgum (R) said in a statement that the decision “rightly blocks the Biden administration’s overreaching rule that would unlawfully extend federal jurisdiction to nearly every stream, pond and wetland in North Dakota.”
But Janette Brimmer, an attorney with nonprofit environmental law organization Earthjustice, said it "readily bows to the forces in this country that have been trying for years to gut the Clean Water Act, throwing science under the bus and disregarding water safeguards for downstream communities and tribes."
In his ruling, Hovland recounted the long, tangled history in the courts over WOTUS, saying that the Clean Water Act has “created a litany of chaos and uncertainty” and led to “an endless stream of lawsuits and legal challenges” regarding the scope of federal and state water jurisdiction.
That scope is important for construction companies, because it determines whether they require a federal permit to build near certain bodies of water or whether this falls under state jurisdiction.
Advocates of the Biden regulation, however, succeeded in a U.S. District Court in Kentucky, where a judge on March 31 denied the state's request for an injunction.
Hill Action, a Veto and Supreme Court
In another WOTUS-related development, congressional foes of the Biden water regulation approved a resolution to strike it down.
Final congressional approval came on March 30, when the Senate passed the resolution 53-43, following House passage on March 9.
Biden vetoed the resolution on April 6, paving the way for veto-override votes in both chambers. But rule opponents fell well short of the two-thirds majorities in the House and Senate needed for an override.
The recent flurry of WOTUS-related congressional action and federal court cases are just preliminary rounds for what all sides of the issue see as the main event—a U.S. Supreme Court ruling in a case that is expected to deal with the dimensions of federally regulated waters.
The high court's opinion in that case, Sackett v. Environmental Protection Agency, is expected to be announced before the end of its term in late June.
Sackett is the fourth WOTUS-related case to come before the Supreme Court since 1985. The previous three did not resolve the confusion over federally regulated waters.
Whether Sackett will provide the long-sought clarity remains to be seen.
