“Waters of the United States” continues to make waves

The United States Supreme Court began its new term last October with the now famous wetlands case of Sackett v. U.S. EPA.  The case is one in a long line of legal battles over how to define which waters are “waters of the United States” (“WOTUS”) that are subject to federal jurisdiction under the Clean Water Act.  We expected quiet waters for WOTUS as we awaited the Sackett decision. But we were wrong.

New EPA rule.  The U.S. EPA made a big splash on January 18, when the agency published a new WOTUS rule to define which waters are WOTUS.  Although the rule had been under consideration since the beginning of the Biden administration, many expected the EPA to hold off on finalizing the rule until after the Supreme Court’s Sackett ruling because that decision could affect the rule.  The EPA chose not to wait, and the new rule became effective on March 20, 2023. 

New litigation begins.  Not surprisingly, the new WOTUS rule set off a new wave of litigation.  A string of four federal lawsuits were filed in January and February of 2023 by many states and interest groups.  The cases contest the validity of the rule and ask for preliminary injunctions preventing implementation of the rule while the cases are pending.

Two cases, two different outcomes.  The Southern District of Texas made the first decision on the new litigation in Texas v. U.S. EPA, granting an injunction on March 19 for two of the lawsuits filed by Texas, Idaho, and the American Farm Bureau and other interest groups.  The injunction prevents the rule from going into effect in Texas and Idaho. The federal district court determined the plaintiffs would expend significant resources complying with the rule although the rule was unlikely to withstand judicial scrutiny, creating potential irreparable harm and justifying an injunction against the rule. The Kentucky district court recent an opposite decision on March 31 in the case filed by the State of Kentucky.  The Eastern District court in Kentucky v. U.S. EPA declined to issue Kentucky’s request for a preliminary injunction, concluding that because the EPA has not begun enforcing the rule in Kentucky, there is no impending injury that warrants an injunction.  In both the Kentucky and Texas cases, the courts declined to issue a nationwide injunction against the new WOTUS rule.

Another injunction decision to come. Twenty four states joined together to file West Virginia v. EPA, the fourth federal lawsuit against the new WOTUS rule.  Ohio is not one of the plaintiff states in the case, which challenges the rule and seeks injunctions in the states as well as a nationwide injunction.  We should see a decision on the injunction request soon from the federal district court in North Dakota.

There are waves in Congress, too.  Not satisfied to sit back and watch the battles over the new WOTUS rule,  Congress recently took action to void the rule.  Congress used its authority under the Congressional Review Act, a little-used federal law that allows Congress to invalidate an agency action.  The House passed a resolution to void the rule on March 9 by a margin of 227 to 198, and the Senate voted on March 29 with 53 for and 43 against nullifying the WOTUS rule.  President Biden has the power to veto the legislation, however.  Neither the House nor the Senate appear to hold the two-thirds majority necessary to override a Biden veto.  (UPDATE:  President Biden vetoed the resolution on April 6, 2023).

Back to SCOTUS.  And still, we circle back to the Sackett case and await the Supreme Court’s analysis of the proper test to use to define a “waters of the United States.”  How will the ruling affect the new WOTUS rule and its litigation?  Will Congress act on the Supreme Court’s ruling to establish a statutory definition for WOTUS that would preempt the EPA’s rule?  As we have learned, there are more WOTUS waves yet to come.