WOTUS Lawsuits Continue to Trickle Through Federal Courts

By:  Ellen Essman, Ohio State University

The controversy over the 2015 Waters of the United States (WOTUS) rule never really leaves the news. Case in point: last week, on May 28, 2019, the U.S. District Court for the Southern District of Texas decided to keep a preliminary injunction that prevents the enforcement of the 2015 version of the rule in Texas, Louisiana, and Mississippi, meaning that the 2015 rule does not currently apply in those states. Meanwhile, at the end of March, the U.S. District Court for the Southern District of Ohio was not persuaded by Ohio and Tennessee to issue a preliminary injunction which would have halted the execution of the 2015 rule in those states. All of this judicial activity is taking place while the Trump administration is working on a replacement for the Obama administration’s 2015 rule.

WOTUS background
If you’re a regular follower of the Ag Law Blog, you know we’ve written numerous updates on the WOTUS saga. For a refresher, the WOTUS rule defines which waters are considered “waters of the United States,” and are consequently protected under the Clean Water Act. In 2015, the Obama administration promulgated its final WOTUS rule, which many agricultural groups and states felt regulated too many waters. Needless to say, many lawsuits over the rule ensued. The Trump administration, hoping to replace the Obama-era rule, released its new proposed rule on February 14, 2019. The comment period for the proposed rule ended on April 15, 2019. The new rule is forthcoming, but in the meantime, due to all of the litigation, whether or not the 2015 WOTUS rule is applicable varies by state. For an explanation of the 2015 rule and the new proposed rule, see our previous blog post here.

Judge continues to block 2015 WOTUS in Texas, Louisiana, and Mississippi…
At the end of May, Judge George C. Hanks Jr. of the U.S. District Court for the Southern District of Texas handed down a decision remanding the 2015 WOTUS rule to the EPA and Army Corps of Engineers and ordering that a previously issued preliminary injunction stay in place, meaning that the government should not implement the 2015 rule in Texas, Louisiana, and Mississippi. While Judge Hanks declined to take up the questions raised by the plaintiffs about the constitutionality of the 2015 rule, he did determine that the agencies violated the Administrative Procedure Act (APA) at the rule’s conception. The APA is a federal law that controls how federal agencies must go about making regulations. Importantly, the APA dictates that agencies should give the American public notice of a proposed rule, as well as a chance to comment on a proposed rule. In the case of Obama’s 2015 WOTUS rule, the definition of “adjacent waters” was changed from being based upon a “hydrologic connection” in the proposed rule to being based on how many feet separated the waters in the final rule. Interested parties did not have any chance to comment on the change before it was included in the final rule. What is more, interested parties did not have the chance to comment on the final report that served as the “technical basis” for the rule. For these reasons, Judge Hanks found that the final rule violated the APA. As a result, he remanded the rule to the agencies to fix and left in place the preliminary injunction blocking the implementation of the rule in Texas, Louisiana, and Mississippi.

…but 2015 WOTUS still applies in Ohio and Tennessee
A decision in the District Court for the Southern District of Ohio came to the opposite conclusion of the Texas case. In March of this year, Judge Sargus denied the states’ motion for a preliminary injunction against carrying out the 2015 WOTUS rule. Sargus did not agree that Ohio and Tennessee were being irreparably harmed by having to follow the 2015 rule, and therefore did not go through with what he called the “extraordinary measure” of providing the states preliminary injunctive relief. Basically, Ohio and Tennessee were not persuasive enough in their argument, and “failed to draw the Court’s attention” to any specific harm the states faced from the 2015 rule. Therefore, as of this writing, the 2015 WOTUS rule still applies in Ohio and Tennessee.

What regulation applies in which states?
All of these lawsuits with different outcomes beg the question: what rule is applicable in which state? EPA has a map depicting which states must currently follow the 2015 rule, and which states instead must follow the pre-2015 definition of WOTUS. The map has not been updated since September of 2018. Since the last update, Colorado, Michigan, New Mexico, and Wisconsin, whose governors’ mansions flipped from red to blue in November, have pulled out of lawsuits against the 2015 rule. These withdrawals could affect which version of WOTUS applies in these states.

Although the outcomes in the different lawsuits throughout the country presently affect which version of the WOTUS rule applies in which state, it is not clear how the rulings will ultimately affect the 2015 WOTUS rule. The Trump administration is currently carrying out its plan to scrap the rule and replace it with new language, which may render all of the existing legal fights over the 2015 rule irrelevant.

What’s next?
The new WOTUS rule, which is expected in its final form later this year, will probably not mark the end of the WOTUS debate. While implementation of the new rule will likely make the aforementioned lawsuits moot, it doesn’t necessarily mean we’ll be out of the woods yet. With all the contention over this topic, it is likely lawsuits will be filed challenging the new rule, as well. Disagreement over what makes up WOTUS might be around for as long as rivers flow.