This week is going to be remembered for another definition of the Waters of the United States, commonly known as WOTUS, being struck down by a federal court.
In this case, the U.S. District Court for North Dakota has invalidated the Environmntal Protection Agency’s most recent rule for defining what constitutes navigable waters under the half-century-old Clean Water Act. The impact of the federal judge’s decision is to remove the WOTUS rule from 24 states.
In 51 years Congress has never provided the definitions needed to administer this part of the Clean Water Act. That has left the EPA, the Army Corps of Engineers, and the states including farm and development groups to fight over the details.
In its current term, the U.S. Supreme Court has heard a case known as Sackett v. EPA, which might clarify the terminology if it actually defines “navigable waters” under WOTUS. That high court ruling is expected to be published by late June.
Because the North Dakota federal District Court ruling was a preliminary injunction favoring 24 state attorney generals who brought a lawsuit, EPA has switched to using the pre-2015 regulations in the other 26 states until further notice.
The 24 states see the new EPA rule as a massive expansion of federal jurisdiction by its definitions for such terms as “adjacent wetland” and “additional waters” for certain local lakes and streams. The EPA wants to qualify waters on a case-by-case basis with terms like “relatively permanent” and “significant nexus” being qualifiers.
The states generally want bright-line definitions to prevail that protect their role in the federal system.
And the preliminary injunction came just a few days after President Biden’s veto kept the EPA’s March 20, 2023, rule intact.
That’s the date of the rule that returns the Agency’s interpretation of WOTUS to that of the Obama administration, an interpretation that was revoked and replaced by the Trump administration.
In March, Congress approved Joint Resolution 27. The joint resolution would have given EPA’s revised definition of WOTUS “no force or effect.” By a vote of 227-198, nine Democrats joined all House Republicans (except one) in support of the joint resolution.
Then, The U.S. Senate approved the same Joint Resolution by a vote of 53-43, with five Democrats joining all Senate Republicans (except one). The Biden veto then followed.
EPA’s revised definition of WOTUS then had a few days until the North Dakota court ruled, sending EPA back to its 2015 rulebook.
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