A federal court injunction this week against the Biden administration’s new waters protection rule in 24 states sparked questions over the clarity and path forward for the rule, even if the action doesn’t dramatically change which waters are protected.
“All the judge has really done is enjoin a somewhat clearer explanation of the law,” without upending the overall legal regime governing wetlands and rivers protection, said Dave Owen, a law professor at the University of California College of the Law-San Francisco.
President Joe Biden offered a rule earlier this year to help protect water quality in rivers and streams and determine where and how homes, mines, highways, and other development can be built if they touch wetlands or waterways.
Republican-led states, along with agriculture and business groups, opposed the rule, filing several lawsuits across the US asking for the proposal to be blocked.
Judge Daniel L. Hovland of the US District Court for the District of North Dakota on Wednesday issued a preliminary injunction against Biden’s waters of the US, or WOTUS, rule in 24 states led by West Virginia. The ruling followed a March federal court ruling in Texas preliminarily enjoining the rule in that state and Idaho. Those rulings block the rule in those 26 states, while it remains in effect in 24 other states.
Now, there’s disagreement about what the injunctions mean because an earlier rule that still broadly protects wetlands is in effect in the states where the Biden rule has been enjoined.
The WOTUS rule determines which wetlands and waterways are protected under the Clean Water Act. The rule, which took effect March 20, protects navigable rivers, lakes, and streams and their tributaries; wetlands that are “adjacent” to those waters; and intrastate lakes, streams, or other wetlands that have some kind of connection to larger lakes and rivers.
Under federal law, builders need a federal dredge-and-fill permit if construction affects those waters.
Following the injunctions, the builders wanting to build in wetlands and the conservationists trying to protect the environment “now face very broad and vague regulation under the Biden rule but stakeholders in the other 26 states will be covered” by the slightly different earlier rule, said Larry Liebesman, a senior adviser at the environmental and water permitting firm Dawson & Associates.
Developers “cannot plan or make rational business decisions until the chaos is cleared up,” he said.
Vague Definitions
Biden’s 2023 WOTUS rule slightly expands on an earlier rule that was in effect before 2015 and re-implemented in 2021. The Obama administration in 2015 vastly expanded federal waters protections, but after those were tossed out in federal court, the Trump administration vastly rolled them back. They were re-expanded again after courts tossed out the Trump rule and again when the Biden rule took effect last month.
Hovland viewed many of the terms in the Biden rule, and even the thrust of the Clean Water Act, as being too vague for landowners to understand whether there’s clearly a federally protected wetland on their property or not.
The law requires the EPA to protect the “chemical, physical, and biological integrity” of US waters. Hovland criticized the Biden rule for failing to define the Clean Water Act’s terms, therefore being too vague.
Hovland took issue with the EPA’s view that interstate waters include all such waters, even those that aren’t connected to navigable waters in any way.
“Does the Clean Water Act support making every wetland, stream, tributary or other water traversing a border subject to federal jurisdiction?” he wrote. He added that the rule is overbroad, and could protect any ditch or “dry waterway” that could hold water that would eventually reach a major river.
But Owen said Biden’s rule is effective because it clarifies definitions even though they’re not strictly precise.
“We have never said in our legal system that rules are only valid if they are clearly and perfectly precise,” he said. “This is just a travesty of a decision.”
Hovland excoriated the Clean Water Act, saying it has “created a litany of chaos” in part because the law says that “only some of the country’s waters are subject to federal jurisdiction.”
“Suffice it to say the Clean Water Act, and the varied and different definitions of ‘waters of the United States,’ have created nothing but confusion, uncertainty, unpredictability, and endless litigation throughout this country to date,” Hovland ruled.
But Owen said that’s not true at all because the CWA has accomplished “a tremendous amount of cleanup” over the past 50 years.
Hovland just dismisses an entire statutory regime as creating confusion, and he repeatedly criticizes federal agencies for following the law and prior Supreme Court precedent, Owen said.
Underscoring the disagreement about the precision of the Biden rule, Liebesman said Hovland’s ruling made it clear that the 2023 rule’s definitions are vague, and it’s hard for anyone on the ground to know what the terms mean.
The Environmental Protection Agency, which regulates federal waters with the Army Corps of Engineers, said Wednesday it’s reviewing the ruling and is applying the slightly different rule in place before 2015 to the states where the 2023 rule is enjoined.
The pre-2015 rule now in effect in 26 states provides more concrete terms to help developers understand what wetlands fall under federal jurisdiction, Liebesman said.
Legal Basis at Risk
Congress similarly rebuked the rule in a bipartisan vote to overturn it under the Congressional Review Act, but Biden vetoed the measure. A vote attempting to override the veto is expected in the House next week, Republican lawmakers said.
The tide seems to be clearly turning against the Biden rule, but the legal chaos is almost certain to continue, said Anna Wildeman, counsel at Troutman Pepper Hamilton Sanders LLP in Washington, who helped write then President Donald Trump’s attempt at an updated water rule as a deputy assistant EPA administrator.
“While these initial rulings are problematic for the Biden administration, they are by no means the end of the story for the 2023 rule,” she said. “There is still a lot of runway for appeals, merits decisions, and likely more appeals.”
A ruling in a pending Supreme Court case, Sackett v. EPA, stands to undermine the legal framework for both current WOTUS regulations, she said. The ruling is expected before the end of the high court’s term.
“In the water space right now, the only thing that’s certain is the uncertainty,” Wildeman said.
The case is West Virginia v. EPA, D.N.D., 3:23-cv-00032, 4/12/23
To contact the reporter on this story:
To contact the editors responsible for this story: