‘Bizarre’ Texas Injunction Means Past US Waters Rule in Effect

A federal waters rule that was in effect nationwide prior to March 20 applies to Texas and Idaho after a federal district court enjoined the Biden administration’s new waters rule in those states, according to the Army Corps of Engineers.

The Biden administration’s 2023 waters of the US, or WOTUS, rule was finalized in January and took effect Monday in 48 states. Texas and Idaho sued in US District Court for the Southern District of Texas, and District Judge Jeffrey Vincent Brown on Sunday issued a preliminary injunction against the rule, barring it from taking effect in those states. Brown was appointed by President Donald Trump.

The regulation that was in effect before Monday remains in effect in those two states, said Douglas Garman, spokesman for the Army Corps, which regulates federally protected waters along with the Environmental Protection Agency.

“In light of the preliminary injunction, the agencies are interpreting ‘waters of the United States’ consistent with the pre-2015 regulatory regime in Idaho and Texas until further notice,” Garman said Tuesday.

The WOTUS rule aims to protect water quality in large waterways nationwide and affects housing, agricultural, mining and other development in every state because builders need a permit to disturb federally protected wetlands and waters.

The pre-2015 rule protects waters that “have relatively perennial flow to a traditionally navigable water and their adjacent wetlands,” as outlined in a 2006 Supreme Court ruling in Rapanos v. US, said Larry Liebesman, a senior adviser at the environmental and water permitting firm Dawson & Associates.

Wetlands in Audubon’s Corkscrew Swamp Sanctuary in southwest Florida.

Photographer: Bobby Magill/Bloomberg Law

Sign of Restraint

The definition of federally protected waters under the Clean Water Act has a long and tortured history. A rule that protected a wide variety of waterways and wetlands was in effect between 2008 and 2015 before the Obama administration issued its version of the rule, which expanded the waters and wetlands that are federally protected.

But a federal court tossed that rule, and the Trump administration re-defined WOTUS to lift protections for numerous wetlands nationwide. Two federal courts vacated the Trump rule, and the Biden administration implemented the pre-2015 rule until this week, when its 2023 rule took effect. The Biden rule is being challenged in at least five lawsuits by at least 26 states and numerous industry groups.

The injunction isn’t likely to have much impact on the other four lawsuits because it doesn’t apply nationwide, said Robert Percival, director of the environmental law program at the University of Maryland Francis King Carey School of Law.

“It’s actually a sign of restraint that he didn’t grant a nationwide injunction,” Percival said, referring to Brown. “This is a profound legal mess that I don’t see any end in sight.”

Dave Owen, a law professor at the University of California College of the Law, called Brown’s reasoning for the injunction “bizarre,” because Brown accused the rule of following the significant nexus test, which has been upheld by federal courts for years.

The significant nexus test is a legal test first articulated in 2006 by then-Supreme Court Justice Anthony Kennedy that the EPA uses to determine if waters and wetlands are protected under the law. The 2023 WOTUS rule applies to some local lakes, streams, and wetlands that flow into navigable waters such as the Mississippi River.

Brown objects to the 2023 rule because it says it protects both navigable and interstate waters. But Justice Kennedy’s significant nexus test applied only to navigable waters and applying the test to interstate waters is what’s going to sink the rule in court in part because it “raises serious federalism questions,” Brown said in the ruling.

Owen said that logic makes no sense.

“To suggest that using federal authority to address interstate water problems is inconsistent with federalism shows a fundamental misunderstanding of constitutional federalism,” Owen said.

Sackett is ‘Next Shoe’

The future of the 2023 rule beyond Texas and Idaho is unclear because a pending Supreme Court case, Sackett v. EPA, could undermine the significant nexus test, and judges in the four other federal district court lawsuits have yet to rule on an injunction.

“The Sackett decision will be the next shoe to drop,” possibly setting off another wave of litigation as those subject to WOTUS determinations ask courts to re-examine them in light of the Supreme Court’s ruling, Percival said.

Meanwhile, the lawsuit against the rule involving the most states, West Virginia v. EPA, is pending in the US District Court for the District of North Dakota. In that litigation, Judge Daniel Hovland, a President George W. Bush appointee, has yet to rule on 24 states’ request for an injunction against the 2023 WOTUS rule.

The states on Monday asked that Hovland deny four Native American tribes’ motion to intervene in the case, saying that they have no right to join the lawsuit to defend the rule and that federal agencies will adequately represent their interests.

The chief litigant in the case, the state of West Virginia, didn’t immediately respond to a request for comment Tuesday.