A U.S. district judge in North Dakota issued an injunction yesterday halting the Biden administration's new rule defining the waters of the United States (WOTUS) under the Clean Water Act. The injunction was issued pending the outcome of a lawsuit by a 24-state coalition in the U.S. District Court for the District of North Dakota. The coalition argued that the Environmental Protection Agency's (EPA) WOTUS definition extends far beyond Congress' original intention for the Act. This is just the latest chapter in a long series of regulatory snafus that has flummoxed the Obama, Trump, and now the Biden administrations.
The federal Clean Water Act states that its objective is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." In order to achieve that, the Act declares that "it is the national goal that the discharge of pollutants
into the navigable waters be eliminated by 1985." Without going too deeply into the history of riparian law, in the 19th and early 20th centuries, upstream polluters could often be ordered by courts to stop polluting or compensate downstream users. For example, in Whalen v. Union Bag Paper Co. (1913), a court ruled in favor of downstream farmer against a polluting upstream factory. The factory, worth $1 million and employing 400 people, was forced to close.
