Perhaps it is poetic justice. The litigation over the final Waters of the United States (WOTUS) rule is as disjointed and confusing as the rule itself. Following a key court ruling yesterday, the WOTUS rule is now preliminarily enjoined. Or is it?
As previously reviewed in this space, the final WOTUS rule scheduled to go into effect today was far from the paragon of clarity. The U.S. EPA and Army Corps of Engineers created a final rule that left many stakeholders scratching their heads over just how they would prove that development on their property did not require a permit under the Clean Water Act.
Litigation commenced almost immediately after the agencies released the final rule. Predictably, a number of government and industry brought suit in multiple jurisdictions alleging a variety of sometimes conflicting challenges. ENGO interests subsequently filed their own litigation alleging the rule’s protections did not go far enough. At least four different major court cases, some with dual district and appellate court tracks, were filed in courts sprinkled around the country.
For the most part, early legal wrangling focused on whether the cases were filed in the correct court, and whether the disparate challenges should be consolidated and where. The agencies argued that the D.C. Circuit should hear a consolidated administrative law challenge. Most pre-trial rulings seemed to be going the government’s way.
But in one of the challenges brought by a group of states in the federal district court in North Dakota, it seemed from preliminary court rulings that the states were gaining some traction to get an injunction preventing the government from enforcing the rule. Sure enough, yesterday afternoon, U.S. Federal District Court Judge Ralph Erickson elected to retain jurisdiction over the case. More significantly, the court granted the states’ motion and issued a preliminary injunction against any agency efforts to enforce the WOTUS rule.
Judge Erickson’s Order will clearly give WOTUS rule opponents great hope that the ultimate hearing on the merits (timing uncertain) could lead to a finding that the EPA and Corps violated administrative law in issuing the final rule.
Specifically, the court described the final rule in a manner that would be music to the state plaintiffs’ ears. The court called the government’s view of the scope of its jurisdiction under the Clean Water Act “exceptionally expansive,” a phrase it used repeatedly. Even accepting the agencies’ estimate that the rule could increase control over traditionally state-regulated waters by between 2.84 and 4.65 percent, the court clearly felt that increase would be significant. “Immediately upon the Rule taking effect, the Rule will irreparably diminish the States’ power over their waters.”
On the merits, the court also sided with the states. The Judge harkened back to Justice Kennedy’s famous concurrence in the Rapanos decision and the general understanding of when a “tributary” would constitute “navigable waters” under the Clean Water Act. The key was that tributary’s significant nexus with other regulated waters. Under the WOTUS rule, even with certain defined exclusions, the court ruled that “…the definition of a tributary here includes vast numbers of waters that are unlikely to have a nexus to navigable waters within any reasonable understanding of the term.”
The court also found that, based on the limited record before it in the context of the injunction motion, that it was “unable to determine the scientific basis for the 4,000 feet standard” to determine the distance from a navigable water that would subject property to regulation. Some sort of test could be reasonable, but here, the court held that the challengers were likely to prevail because there was no rationale articulated to establish the 4,000-foot standard: “[o]n the record before the court, it appears that the standard is the right standard because the Agencies say it is.”
Here’s the litigation kicker. It seems that the agencies are now taking the position that this ruling holds in only the 13 states represented by the plaintiffs in this case. They plan to enforce the WOTUS rule in the other 37, starting today! Clearly, the government will attempt to expedite a final ruling in North Dakota and appeal the injunction ruling and/or use this ruling as further support for consolidation of all WOTUS challenges.
What do we tell clients now? Most likely, wait and see for a couple of weeks, as there will be rapid litigation developments. The frustrating history of WOTUS continues, not only in the fields, farms, and wetlands of America, but also in the courts.