Federal court in North Dakota blocks WOTUS implementation in Indiana, 23 other states

April 12, 2023

A federal judge in North Dakota stopped the implementation of a Biden administration rule that defined which waterways fall under federal jurisdiction, also known as “waters of the United States,” in Indiana and 23 other states.

District Judge Daniel Hovland granted a preliminary injunction that blocks the U.S. Environmental Protection Agency from implanting or enforcing the Biden administration’s “Revised Definition of ‘Waters of the United States’” until the end of the trial, at the earliest.

The Biden WOTUS rule returned the U.S. to a definition put in place during the Reagan administration and observed until 2015.

The case was brought by the Republican attorneys general of 24 states, including Indiana, who claimed the expansion of the WOTUS definition exceeds the jurisdiction given to the federal government by the Clean Water Act.

The case was later joined by farming organizations, land developers, fossil fuel producers and other groups that have traditionally contributed to water pollution.

The Republicans claimed the Biden WOTUS definition expanded WOTUS to include “relatively permanent” waterways with no clear duration, altered the definition of the U.S. Supreme Court’s “significant nexus” test to determine which are “navigable waterways,” changed the definition of what constitutes tributaries and wetlands and allows the federal government to claim jurisdiction on any intrastate waterways that affect jurisdictional waters.

Hovland, who was appointed by President George W. Bush in 2002 and assumed senior status in 2019, said there was no urgency to implement the rule due to a pending Supreme Court decision in a case involving wetlands that could further restrict which waterways fall under federal protection.

“The ripple effects caused by the 2023 Rule strongly favor maintaining the status quo for now. Preserving the status quo is always an important equitable consideration. There is no legitimate concern that natural resources are threatened because all local lands and waters remain under the State’s traditional protection. A delay allows for a full and final resolution on the merits and is in the best interests of the public,” Hovland said in his decision.

Indiana Attorney General Todd Rokita celebrated the victory on social media, calling the injunction “a huge win” for the state.

Environmental groups said the decision sets a dangerous precedent that would continue to allow big business interests to bypass regulation intended to protect communities.

“This ruling 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,” said Janette Brimmer, attorney with Earthjustice. “We will not give into these forces; we will double down and fight along with our partners to ensure the law and science prevail and the will of the vast majority of citizens for clean water is carried out.”

Brimmer is representing several American Indian tribes who said the Biden WOTUS definition helped protect the habitats for traditional medicines and food sources.

The Obama and Trump administrations attempted to implement their own WOTUS definitions. Both fell to legal challenges.

The Obama WOTUS attempted to expand the types of waterways under federal protection. Various states, including Indiana, successfully sued to stop its implementation.

The Trump Navigable Waters Protection Rule reduced the number of waterways under federal protection. It was implemented in 2020 and was repealed by a federal judge in 2021.

During the reign of the Trump WOTUS, Indiana Builders Association members serving as state senators led a successful repeal of state protections for more than half of the state’s wetlands.

Nearly 25,000 miles of state waterways have recreational use impairments due to excess bacteria and nutrients derived from farming practices and other pollution sources.

Federal court in North Dakota blocks WOTUS implementation in Indiana, 23 other states