WOTUS Update

WOTUS Update

susan bodine

Yesterday, March 19, Judge Brown of the U.S. District Court for the Southern District of Texas enjoined the 2023 WOTUS rule in Texas and Idaho, finding “a substantial likelihood that the 2023 Rule exceeds the Agencies’ statutory authority under the Act.”

The rule has been challenged by 24 other states (West Virginia, North Dakota, Georgia, Iowa, Alabama, Alaska, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and Wyoming, and the Commonwealth of Virginia) in the District of North Dakota but that court has not yet ruled on their motion for preliminary injunction. So, as of today, the 2023 WOTUS rule is in effect in all states but Texas and Idaho.

A few excerpts from Judge Brown’s decision are interesting:

  • “But the EPA and the Corps (“the Agencies”) do not have unbridled jurisdiction to regulate all the nation’s waters’.
  • “Though there is much the court could say, two aspects of the 2023 Rule make the plaintiffs particularly likely to succeed on the merits—first, the Rule’s significant-nexus test, and second, the Rule’s categorical extension of federal jurisdiction over all interstate waters, regardless of navigability.”
  • “In both SWANCC and in this case, the boundaries—if any—that the word “navigable” places on “waters of the United States” unavoidably “alters the federal-state framework,” id. at 173, because the Rule invokes “categorical protections for interstate waters, regardless of their navigability,” 88 Fed. Reg. at 3072. The Agencies’ effort to read navigability out of the statute’s text to permit categorical encroachment on States’ rights raises constitutional questions this court should—if any other reasonable interpretation of the Act exists—avoid. See SWANCC, 531 U.S. at 173.”
  • “Even if it is appropriate to use Justice Kennedy’s significant-nexus test to establish jurisdiction, “the Rule is unlikely to withstand judicial review because its version of the significant-nexus test is materially different from the standard Justice Kennedy articulated in Rapanos. See 20 Dkt. 12 (arguing that “the Rule expands federal jurisdiction over features that Justice Kennedy [did not], such as ephemeral drainages, many ditches, and non-navigable interstate waters”) (citing Rapanos, 547 U.S. at 784 (Kennedy, J., concurring)).”

And EPA’s claim that the rule represents the status quo hurt their argument against a preliminary injunction:

“Taking as genuine the federal defendants’ convictions that the Rule’s differences from the status quo are “slight,” id. at 17, it is difficult to see how an injunction will harm the Agencies as this court considers the merits. And if the intervenor–defendant is correct that the Rule will expand the waters that come under the Agencies’ jurisdiction, then the equities would favor granting an injunction—rather than denying one—to preserve the status quo.”

A lot more to come (including the Supreme Court’s Sackett decision), but this opinion may provide a hint as to where this issue is headed.

Share this Post