As we discussed in our January 19, 2023, blog, the US Environmental Protection Agency (EPA) issued (in the form of a final rule) the most-recent definition of Waters of the United States, or WOTUS. To the surprise of no one, this rule was challenged in court by several organizations and states.
Ruling on new WOTUS Rule Applies to Texas and Idaho
There was a recent ruling on one of those challenges. On March 19, 2023, the US District Court for the Southern District of Texas enjoined the WOTUS rule in Texas and Idaho. In ruling on the case, Judge Jeffrey Brown stated, in part, that there is “a substantial likelihood that the 2023 Rule exceeds the Agencies statutory authority under the Act.”
A few other interesting excerpts from the ruling:
- “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.”
- “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.”
These excerpts are from a blog by Lawyer, Susan Bodine, who previously served as the Assistant Administrator for U.S. EPA’s Office of Enforcement and Compliance Assurance (OECA) and is now at E&W Law.
On March 19, 2023, the US District Court for the Southern District of Texas enjoined the WOTUS rule in Texas and Idaho (Image by Ezequiel Octaviano from Pixabay).
Pending Lawsuits to Block WOTUS
Here is the list of WOTUS lawsuits: Am. Farm Bureau Fed’n v. EPA, S.D. Tex., No. 3:23-cv-00020 (the case outlined above), complaint filed 1/18/23, Texas v. EPA, S.D. Tex., No. 3:23-cv-00017, complaint filed 1/18/23, Kentucky v. EPA, E.D. Ky., No. 3:23-cv-00007, complaint filed 2/22/23, Kentucky Chamber of Commerce v. EPA, E.D. Ky., No. 3:23-cv-00008, complaint filed 2/22/23, and W. Virginia v. EPA, D.N.D., No. 3:23-cv-00032, complaint filed 2/16/23 (Source: Bloomberg Law).
We will continue to monitor the fate of the pending litigation, but on first blush and following the first ruling, it appears “we” will again be headed back to the drawing board.
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This blog was drafted by Alan Hahn. Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management. He has worked in environmental management for 45 years. He has written hundreds of blogs and articles. His published work includes Michigan Lawyers Weekly, Detroiter, Michigan Forward, GreenStone Partners, Manure Manager Magazine, Progressive Dairy, and HazMat Magazine.
The blog was reviewed by Jeffrey Bolin, M.S. Jeff is a partner and senior scientist at Dragun Corporation. He is a published author, frequent speaker, and expert witness. His expertise in environmental due diligence, PFAS, vapor intrusion, and site assessments has led to projects in the US, Canada, and overseas. See Jeff’s Bio.
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