Controversy over the Clean Water Act definition of “waters of the United States” persists as the Biden Administration’s new rule goes into effect in 24 states, but is enjoined in the remaining 26 states, continuing the trend of regulatory uncertainty that has characterized the issue for decades.
The Biden Administration’s definition of “waters of the United States” (2023 Rule) comes after definitions adopted by the Obama Administration in 2015 (the 2015 Clean Water Rule) and the Trump Administration in 2020 (the Navigable Waters Protection Rule). However, neither the 2015 Clean Water Rule nor the Navigable Waters Protection Rule were valid at the time President Biden assumed office. The 2015 Clean Water Rule was formally repealed under the Trump Administration on September 12, 2019; the administration then published the Navigable Waters Protection Rule providing a new definition of “waters of the United States” on April 21, 2020. More information about the Navigable Waters Protection Rule can be found here. The Navigable Waters Protection Rule, in turn, was invalidated by the U.S. District Court for the District of Arizona on August 31, 2021.
Following the Navigable Waters Protection Rule’s invalidation, the United States Environmental Protection Agency (EPA) and the Department of the Army (collectively, the “Agencies”) applied the pre 2015 regulatory regime to define “waters of the United States.” The pre-2015 definition consists of both a regulatory definition and a clarification of U.S. Supreme Court jurisprudence set forth in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineering, 531 U.S. 159 (2001) and Rapanos v. United States, 547 U.S. 715 (2006).
The Agencies adopted the 2023 Rule via publication of a final rule on January 18, 2023, after which it was scheduled to take effect on March 20, 2023. More information about the Agencies’ actions and the substance of the 2023 Rule can be found here.
On March 19, 2023, the U.S. District Court for the Southern District of Texas issued a preliminary injunction preventing the application of the 2023 Rule in Texas and Idaho pending its consideration of those states’ legal challenges to the rule in State of Texas et al. v. EPA. Plaintiffs Texas, Idaho, and a group of trade associations allege that the 2023 Rule violates the Administrative Procedure Act and the U.S. Constitution. Additionally, the trade associations allege that the 2023 Rule violates the Regulatory Flexibility Act of 1980, as amended. The court held that Texas and Idaho met the standard for a preliminary injunction within their sovereign borders, but denied the trade associations’ request for a preliminary injunction across the nation.
Next, on April 12, 2023, the U.S. District Court for the District of North Dakota issued a preliminary injunction preventing the application of the 2023 Rule in 24 states: Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia, and Wyoming. The 24 states, plaintiffs in State of West Virginia et al. v. EPA, allege claims under the APA and the U.S. Constitution that are similar to the claims considered in State of Texas et al. v. EPA.
Pending resolution of the two lawsuits, the Agencies announced that they will simultaneously apply the pre-2015 regulatory regime in the 26 states subject to injunction and the 2023 Rule in the remaining 24 states. However, as discussed here, the ultimate fate of the 2023 Rule may depend upon the U.S. Supreme Court’s ruling on the circumstances under which wetlands are “waters of the United States” in Sackett v. EPA, expected by June, which would impact both the pre-2015 regulatory regime and the 2023 Rule. If history is any indication, the only thing certain about the scope of Clean Water Act jurisdiction may be ongoing uncertainty.
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