On March 19, 2023, in Texas v. EPA TRO Order, the United States District Court for the Southern District of Texas issued an order enjoining the Environmental Protection Agency (EPA) and Army Corps of Engineers Waters of the United States (WOTUS) Rule in the states of Idaho and Texas. The injunction went into effect just one day before the WOTUS Rule was set to become final. Texas represents the latest in the multidecade saga of seeking to define the term “waters of the United States” in the context of the Clean Water Act (CWA). Moreover, Texas is just one hurdle EPA’s new WOTUS Rule faces, with a pending Supreme Court case (Sackett v. EPA) and potential congressional action to block the rule both on the horizon.
The CWA uses the phrase “waters of the United States” in many key statutory provisions, and EPA has mirrored the centrality of that concept in its rules and guidance under the CWA. Accordingly, the question of what constitutes “waters of the United States” is critical, and attempts to define that phrase have met with legal challenges since the 1970s. Among those challenges was Rapanos v United States, a 2006 Supreme Court case that addressed EPA’s authority to regulate “waters of the United States.” There, the Court considered whether waterways that only occasionally emptied into a tributary of a navigable waterway constituted a “water of the United States.” Unable to garner five votes for any proposition, the Court issued a plurality opinion. Writing for four justices, Justice Antonin Scalia concluded that “waters of the United States” is not limited to navigable waters but that the statutory language included “relatively permanent, standing or flowing bodies of water,” not “occasional,” “intermittent,” or “ephemeral” flows. By contrast, Justice Anthony Kennedy concluded that a waterway could be a “water of the United States” if it had a “significant nexus” to a navigable waterway.
On January 18, 2023, EPA issued its new WOTUS Rule. Among other things, the WOTUS Rule extended the agency’s scope to (1) waters with a significant nexus to navigable waters and (2) all interstate waters, navigable or not. EPA provided two definitions for “significant nexus.” First, the WOTUS Rule would find a significant nexus where water “either alone or in combination with similarly situated waters in the region, significantly affect[s] the chemical, physical, or biological integrity of traditional navigable waters, the territorial seas, or interstate waters.” Second, the WOTUS Rule would find a significant nexus where water is “relatively permanent, standing or continuously flowing waters connected to paragraph (a)(1) waters, and waters with a continuous surface connection to such relatively permanent waters or to traditional navigable waters, the territorial seas, or interstate waters.” In Texas, the states of Idaho and Texas sued EPA seeking to enjoin enforcement of the new WOTUS Rule within their state boundaries. Eighteen national trade associations joined the suit and sought a nationwide injunction.
On March 19, 2023, the day before the new WOTUS Rule was set to become final, Judge Jeffrey Brown of the Southern District of Texas issued an order enjoining the Rule in Idaho and Texas but declining to enjoin it nationwide. In reaching its conclusion, the court found, in part, that the WOTUS Rule likely went beyond EPA’s statutory authority because the new definition extended beyond Justice Kennedy’s concurrence in Rapanos. Ultimately, Judge Brown concluded that Idaho and Texas had met their burden to enjoin the WOTUS Rule within their boundaries. However, the court concluded the associations had not met their burden for a nationwide injunction of the Rule because they failed to show irreparable harm. The court concluded that the associations’ arguments regarding irreparable harm were conclusory and speculative.
Texas is one of three cases directly challenging the WOTUS Rule. Cases are also pending in the District of North Dakota (West Virginia, et al. v. EPA, No. 3:23-cv-32 (D.N.D.)) and the Eastern District of Kentucky (Kentucky v. EPA, No. 3:23-cv-7 (E.D. Ky.)). But these cases are not the only challenges to the WOTUS Rule. First, as noted in our post about the new WOTUS Rule, in Sackett, the Supreme Court is considering a case that asks the Court to adopt the plurality holding in Rapanos and settle the question of the scope of the federal government’s WOTUS authority. The holding in Sackett — which was argued in October 2022 — may effectively affirm or upend the WOTUS Rule. Second, some members of Congress have raised the prospect of legislative action to block the WOTUS Rule. Such action would require bipartisan support, given the split Congress, and would likely face a veto by President Joe Biden. Regulated entities should watch developments in this space closely. Several different outcomes in the district courts, Supreme Court, and Congress over the next weeks and months may directly affect regulated entities’ obligations under the CWA.