The Environmental Protection Agency’s and Army Corps of Engineers’ “Revised Definition of ‘Waters of the United States’” (WOTUS) rule became final on March 20, 2023. However, the rule is facing challenges from nearly every conceivable angle. Implementation of the rule has already been halted in 24 states, the rule is facing disruption by the U.S. Supreme Court, and the Legislative Branch sought to rescind the rule altogether.
As Sarah Mangelsdorf highlighted in her March 2, 2023 Environmental Law Monitor post, New Year, New WOTUS: Is There Resolution in Sight?, the new rule established a definition of WOTUS to include traditional navigable waters, territorial seas, interstate waters, impoundments, tributaries, adjacent wetlands and other waters that satisfy either the “relatively permanent” or “significant nexus” tests.
Opposition to the rule began immediately. Even on the day prior to implementation, on March 19, 2023, the U.S. District Court for the Southern District of Texas issued a preliminary injunction to stop the implementation and enforcement of the rule in Texas. The preliminary injunction was granted based on the states’ likelihood of success in challenging the rule. The court reasoned that the new significant-nexus test expanded the jurisdiction of the Clean Water Act beyond where it can withstand judicial review. The U.S. District Court for the District of North Dakota quickly followed, determining the rule to be ambiguous, suspect, and unintelligible, triggering “serious constitutional concerns.” The North Dakota Court ruled that the rule cannot be implemented in 24 states while the challenges to the rule move forward.
Next, the U.S. Supreme Court is expected to issue a ruling in the near future in the case of Sackett v. EPA. Sackett is directly focused on the legality of the significant nexus text, which is a critical part of the new WOTUS rule. Based upon the justices’ comments, questions at oral argument, and SCOTUS’ 2022 Clean Air Act decision in West Virginia v. EPA, the court is likely to eliminate or at least restrict the significant nexus test. Such a verdict will likely require the Biden administration to completely rethink and revise the definition of WOTUS yet again.
GOP lawmakers also challenged the rulemaking procedures under the Congressional Review Act seeking to rescind the rule in its entirety. The House approved the resolution; however, President Biden vetoed the resolution in early April 2023. The House of Representatives attempted to override the President’s veto, but was unsuccessful in procuring enough votes to override the veto. The vote failed 227-196 and did not meet the 290-vote threshold to meet the two-thirds requirement.
Undoubtedly, SCOTUS’ ruling in Sackett and other litigation will significantly impact the jurisdictional reach of the Clean Water Act. Equally as doubtless, the pursuit to create a durable definition of WOTUS will not end there.