Bloomberg Law
March 6, 2023, 4:24 PM

EPA Fires Back Against Texas Challenge of Biden’s Waters Rule

Bobby Magill
Bobby Magill

The EPA hit back against Texas and other states suing to vacate the agency’s new waters of the US rule, saying the states have sued to halt a rule that isn’t much different from the status quo.

“Plaintiffs’ claims of harm are premised on either a complete disregard for the Rule’s similarity to the status quo they seek to maintain,” or overstate the differences between the status quo and the new rule, the Environmental Protection Agency said in its response, filed March 4.

Texas, which claimed that it faces too much regulatory uncertainty because of the rule, has failed to show that it has standing to sue because uncertainty isn’t sufficient to establish standing, EPA said.

In the case, Texas v. EPA, the state is asking the US District Court for the Southern District of Texas to issue a preliminary injunction against President Joe Biden’s waters of the US, or WOTUS, rule, which is set to take effect March 20. The rule it’s based on, however, has been in effect for more than a year since two federal courts tossed out the Trump administration’s 2020 Navigable Waters Protection Rule.

The WOTUS rule determines which waters and wetlands receive federal protection under the Clean Water Act. Each White House since 2008 has either expanded or shrunk the number of wetlands and waterways that receive federal protection. The Trump rule vastly reduced the protected wetlands nationwide.

Cascade of Litigation

Since the Biden administration finalized the new rule, which codifies a pre-2015 definition of WOTUS with some tweaks, at least 26 states and a slate of agricultural and industry groups have joined at least five lawsuits seeking to vacate the rule.

The EPA says Texas’ lawsuit compares the 2023 rule to the Trump rule and suggests that the Navigable Waters Protection Rule is the status quo, but “that rule is not presently in effect anywhere,” the agency said.

“The differences between the challenged Rule and the status quo regime are slight, and neither Texas nor Industry has shown a harm arising out of any of those slight differences,” the agency said.

If Texas were to succeed in its claims against the 2023 rule, it could “unlock the door only to party-specific relief,” not a nationwide scrapping of the rule, EPA said.

States and industry groups joining the suit, including the American Petroleum Institute and others, said they face irreparable harms from the expected costs of complying with the new rule. But EPA said that the plaintiffs haven’t demonstrated that they’ll be harmed because the compliance costs come from existing regulations already in effect, not the new rule.

The lawsuits claim the EPA is exceeding its authority and the rule is overly vague and premature because it was finalized in January ahead of the high court’s future ruling in Sackett v. EPA, expected by June.

Sackett grapples with the significant nexus test, a legal test that the EPA is using 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.

EPA said Sackett has no bearing on Texas’ alleged harms.

“The States contend that their injuries (to the extent they exist) are ‘exacerbated’ by the pending Sackett litigation, which will ‘likely significantly impact the Rule’s implementation,’” EPA said. “That is the definition of conjecture. The question here is whether the States have suffered irreparable injury caused by the Rule, not how a forthcoming court decision may affect its implementation.”

The case is Texas v. EPA, S.D. Tex., No. 3:23-cv-00017, 3/4/23.

To contact the reporter on this story: Bobby Magill at

To contact the editor responsible for this story: Renee Schoof at