Bloomberg Law
March 1, 2023, 10:30 AM

Waters Lawsuits Will Roll on Even as High Court Weighs in

Bobby Magill
Bobby Magill
Samantha Hawkins
Samantha Hawkins
Legal Reporter

At least five federal lawsuits challenging the EPA’s new waters of the US rule are expected to continue even if the US Supreme Court undermines the basis for the rule in an opinion coming this term.

The ruling could fuel states’ legal challenges to the Environmental Protection Agency’s waters of the US, or WOTUS, definition, attorneys say.

Twenty-six states and a slate of agricultural and industry groups have joined the lawsuits seeking to vacate the EPA’s latest WOTUS rule defining the scope of waters protected under the Clean Water Act. The lawsuits claim the EPA is exceeding its authority and that 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 a legal test that the EPA is using to determine if waters and wetlands are protected under the law. The 2023 WOTUS rule takes effect March 20 and applies to some local lakes, streams, and wetlands that flow into navigable waters such as the Mississippi River.

‘Overreach’ Challenged

Farmers believe that the new WOTUS rule will allow the EPA and the Army Corps of Engineers to claim that any sometimes-wet water feature on farms would be protected—an expansion of long-standing federal wetlands jurisdiction, said Travis Cushman, deputy general counsel for litigation and public policy for the American Farm Bureau Federation.

The American Petroleum Institute, National Association of Home Builders, National Association of Realtors and 13 other trade groups joined the Farm Bureau in its lawsuit challenging the rule, American Farm Bureau Association v. EPA, filed Jan. 18 in the US District Court for the Southern District of Texas.

Farmers’ concerns are echoed by 24 Republican-controlled states led by West Virginia, which sued Feb. 16 in the US District Court for the District of North Dakota, claiming the EPA rushed out an unlawful rule. Texas and Kentucky have each sued separately, and the Kentucky Chamber of Commerce filed its own lawsuit.

The EPA’s decision to publish the WOTUS rule before the Sackett ruling shows that the “agencies aren’t considering the real-world consequences of their actions,” said John Mangalonzo, press secretary for the West Virginia Attorney General’s Office.

Homebuilders and farmers are facing “whiplash” because they’ve repeatedly been subjected to ever-changing WOTUS definitions, he said.

Attorneys who think the WOTUS rule is on solid legal ground say the lawsuits have little merit.

“None of these lawsuits presents a compelling reason for a court to jump out and issue a preliminary injunction,” said Stu Gillespie, staff attorney for Earthjustice, an environmental law firm. “They haven’t shown an irreparable harm.”

Each of the lawsuits is weak because the rule’s interpretation of the Clean Water Act to cover tributaries of navigable waters and their adjacent wetlands is consistent with the text of the law, the point of which is to protect water quality, said Dave Owen, a law professor at the University of California College of the Law, San Francisco.

“You can’t have water quality in larger waterways if you don’t protect the tributary features,” he said.

The 2023 WOTUS rule mostly reverts CWA wetlands jurisdiction to its status before the Obama administration expanded it in 2015. After a court tossed out the Obama administration’s definition, the Trump administration vastly shrank the scope of the rule.

Two federal judges vacated the Trump rule, and in 2021, the Biden administration re-implemented the pre-2015 definition before tweaking and codifying it with the 2023 rule.

Kelly Moser, a senior attorney with Southern Environmental Law Center and leader of its Clean Water Defense Initiative, said that the new rule is consistent with longstanding regulatory regime, so none of the lawsuits holds any merit.

“The critiques go well beyond the minimal changes made,” she said.

But Moser added that the plaintiffs did their homework when it came to determining where to file their challenges.

Forum Shopping?

“The red states and farm interests challenging the new interpretation have been forum shopping in an effort to find a Trump-appointed judge who will strike down the new rule,” said Robert Percival, a law professor at the University of Maryland. “They may well succeed.”

Craig Johnston, a professor at Lewis & Clark Law School and former counsel to the EPA, agreed that it’s highly likely that the Biden administration’s rule will be overturned.

“Right now, district court judges believe that any single one of them can invalidate a rule nationwide,” Johnston said, as evidenced by the overturning of both Trump and Obama’s WOTUS rules. “The people who don’t want the Clean Water Act to be applied broadly can file 20 different cases in 20 different districts, and they only have to win one. It’s a numbers game.”

Johnston says the parties have been smart, choosing their venues carefully—which will make a circuit split unlikely. But the issue could very well make its way back to the Supreme Court, Johnston said.

“The Supreme Court has proven that it is very interested in the jurisdictional reach of the Clean Water Act,” Johnston said.

Sackett’s Effects

The Sackett ruling could force the Biden administration to revisit the rule.

Based on a 2006 Supreme Court opinion, the 2023 rule uses the “significant nexus” test to determine whether streams and wetlands fall under federal jurisdiction.

The “significant nexus” test determines whether smaller water bodies or wetlands substantially affect the chemical, physical, or biological integrity of larger navigable waters. The new rule adds criteria to clarify the meaning of “significant nexus,” including a water body’s distance to a navigable water, frequency and duration of water flow, and a smaller body’s contribution of flow and sediment to a navigable water body.

The new rule says that a smaller water body must have a “material influence” on a larger one for the smaller waterway or wetland to be considered protected under the Clean Water Act.

Though Sackett may undermine some of the underlying principles behind the new WOTUS rule, the ruling wouldn’t moot the Farm Bureau’s lawsuit because the EPA’s rule would still be in place, at least for a while, Cushman said.

“As long as EPA’s final rule is on the books, these cases should not be considered moot,” said Anna Wildeman, counsel at Troutman Pepper Hamilton Sanders LLP.

If the high court fully embraces the significant nexus test, the EPA would use the opinion to defend the 2023 rule, Wildeman said. If the court limits the test, the EPA would likely still argue that its rule doesn’t run afoul of the court’s Sackett opinion and continue to defend the rule, she said.

But if the Sackett ruling “eviscerates” the test, the litigants in the case would use the ruling to challenge the rule, said Wildeman, who helped write the Trump rule during her tenure as the EPA’s principal deputy assistant administrator for the Office of Water.

“If we get a broad ruling in Sackett, then the vast majority of the Biden rule is already dead,” Johnston said. “But I don’t think they’re going to do that, I think they are going to issue a narrower ruling.”

The cases are Am. Farm Bureau Fed’n v. EPA, S.D. Tex., No. 3:23-cv-00020, 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.

To contact the reporters on this story: Bobby Magill at; Samantha Hawkins at

To contact the editors responsible for this story: Renee Schoof at; Rob Tricchinelli at

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