Federal District Court Enjoins Biden Administration's WOTUS Rule In Texas And Idaho

• Jurisdiction: United States,Federal,Texas,Idaho
• Law Firm: Nossaman LLP
• Subject Matter: Environment, Litigation, Mediation & Arbitration, Energy and Natural Resources, Environmental Law, Trials & Appeals & Compensation, Water
• Author: Samantha Murray
• Published date: 05 April 2023

On March 19, 2023, the U.S. District Court for the Southern District of Texas issued a preliminary injunction to temporarily halt the enactment of the Biden administration's new waters of the United States (WOTUS) rule within the borders of Texas and Idaho. (The case is Texas v. EPA, Case No. 3:23-cv-00017). In addition to the two state plaintiffs, eighteen national trade organizations asked the court to enjoin the rule across the nation. The court denied the trade organizations' request, finding that the organizations did not have standing to sue because they could not prove they would suffer irreparable harm as a result of the rule's implementation. On March 20, 2023, the rule became effective throughout the United States, except in Texas and Idaho.

Supreme Court Precedent and a Pending Decision - Contextualizing the Biden Administration's WOTUS Rule

Though the district court's discussion of the Biden administration's WOTUS rule largely constrains itself to the language of the rule and the legal theories presented by each party, the 800 pound gorilla in the opinion is the pending U.S. Supreme Court decision in Sackett v. EPA. (8 F.4th 1075 (9th Cir. 2021), cert. granted Jan. 24, 2022). The issue in Sackett is whether the Ninth Circuit applied the proper test under the Clean Water Act to determine whether wetlands are WOTUS. The Ninth Circuit used the "significant nexus" test, which originates from Justice Kennedy's concurrence in Rapanos v. United States. (547 U.S. 715 (2006)). During oral argument, the justices discussed the merits of both the significant nexus test and the Rapanos plurality's alternate test, the "relatively permanent" test (authored by Justice Scalia). The Court's ruling in Sackett is expected to clarify the process agencies should use to define WOTUS, and could be handed down as early as this summer.

Critics of the Biden administration's WOTUS rule argue that the administration should have waited for the Court to determine the outcome of Sackett before promulgating a new rule. In a fact sheet released alongside the rule, the Biden administration counters that the rule is simply codifying the definition of WOTUS that "has been implemented by every administration in the last 45 years."

An Overview of Texas v. EPA

In their motion for the preliminary injunction, the states argued that the plain language of the Clean Water Act does not extend the federal government's jurisdiction to

• non-navigable interstate waters,
• impoundments and...