March 27, 2023

2023 WOTUS Rule Enjoined in Texas and Idaho (Or “Here We Go Again”)

Posted on March 27, 2023 by Karen Aldridge Crawford

On March 19, 2023, a federal district court in Texas granted a preliminary injunction prohibiting the January 2023 Revised Definition of Waters of the United States (2023 WOTUS rule) promulgated by Environmental Protection Agency and the Army Corps of Engineers (the agencies), 88 Fed. Reg. 3004 (Jan. 18, 2023) from being implemented or enforced within the borders of Texas and Idaho.  The decision preceded the effective date of the rule by one day.  The court denied a request by eighteen national trade associations (whose related case was consolidated with that of Texas and Idaho (the states)) to enjoin the challenged rule nationwide, stating the associations had not met the burden of showing irreparable harm. Texas, et al. v. U.S. Environmental Protection Agency, et al., No. 3:23-cv-00017, March 19, 2023.

Like a predecessor rule in 2015 which attempted to broaden the definition of WOTUS, numerous states and industry groups have challenged the 2023 WOTUS rule. The Texas court pointed to two other suits filed in North Dakota and Kentucky, West Virginia v EPA, No. 3:23-cv-32 (D.N.D.), Dkt.44 and Kentucky v. EPA, No. 3:23-cv-7 (E.D. Ky.), Dkt.10, stating it and higher courts would benefit from other courts weighing in on the matter,  citing a Supreme Court decision noting that competing views by multiple judges and multiple circuits helps the Supreme Court’s decision-making process.  The court also acknowledged that the Supreme Court is currently considering the scope of jurisdiction under the Clean Water Act.

In the underlying cases, the plaintiffs challenged the 2023 WOTUS rule on statutory and constitutional grounds. Plaintiffs claim that the rule violates the Administrative Procedures Act, as arbitrary and capricious; contrary to a constitutional right, power, or privilege; exceeding statutory authority; and promulgated without observance of procedure required by law.  They also claim the rule is unconstitutional in that it violates the Commerce Clause, 10th Amendment, Due Process Clause, and Non-Delegation Doctrine.  The associations also alleged the rule violates the major questions doctrine, but the Texas court stated in a footnote that was a tool for determining whether an agency exceeded its statutory authority, not a stand-alone claim.

The defendants challenged the plaintiffs’ standing, but the court found that the states had shown standing to challenge the rule and, therefore, they did not need to determine whether the Associations also had standing.  With respect to the preliminary injunction elements, the court found that two elements of the 2023 WOTUS rule make the plaintiffs particularly likely to succeed on the merits: 1) the rule’s significant nexus test and the rule’s categorical extension of federal jurisdiction over all interstate waters, regardless of navigability.  Because the Clean Water Act implicates criminal penalties and also because the agency’s interpretation may alter the federal-state framework by permitting encroachment upon a traditional state power, the court determined Chevron deference did not apply in this case.

Thus, the Texas court examined the significant nexus test articulated by the 2023 WOTUS rule and found that, even if the court were to assume that Justice Kennedy’s significant nexus test appropriately measures the agencies’ jurisdiction under the Clean Water Act, the 2023 revision to the definition does not accurately reflect Justice Kennedy’s test, compelling the court to question the rule’s legitimacy and persuading the court that plaintiffs are likely to succeed on the merits. The court specifically pointed out that, unlike Justice Kennedy’s test, the 2023 WOTUS rule defines “interstate waters” as jurisdictional regardless of navigability. Comparing the 2023 version of the WOTUS definition to the attempted 2015 version—and citing opinions vacating that 2015 rule—the court observed that the agencies’ most recent attempt to read navigability out of the Clean Water Act’s plain text is unlikely to fare better than the prior attempt.

While expressing sympathy for the intervenor-defendants’ arguments that claimed the states were not adequately protecting certain interstate waters, the court followed other decisions holding that, even the most admirable of aspirations do not permit agencies to act unlawfully, or in this case beyond their statutory authority under the Clean Water Act.  As discussed above, the court limited the injunctive relief to the two plaintiff states, finding  the Associations are not entitled to any injunctive relief apart from that granted to the states.

As the Texas court observed, we all anxiously await decisions in all pending cases challenging the 2023 WOTUS rule, as well as the pending decision from the Supreme Court on whether the federal agencies are correct about the significant nexus test being the proper tool by which to measure their jurisdiction under the Clean Water Act in Sackett v. EPA.