Defining Waters of the United States (WOTUS)

June 18, 2024 The Eastern District of North Carolina denied a landowner plaintiff’s motion for preliminary injunction seeking to pause the amended WOTUS rule. The court found that the plaintiff was unlikely to succeed on the merits because the rule faithfully applies Sackett’s test to determine when an adjacent wetland is a WOTUS. White v. EPA et al., Docket No. 2:24-cv-00013 (E.D. N.C.).

April 2, 2024 EPA and USACE filed a motion for summary judgment in Texas et al. v. EPA et al. EPA and USACE argue that the court should award summary judgment for lack of standing and ripeness. The agencies also argue that the regulation is valid because it is not facially arbitrary and capricious and because of agency deference under Chevron and Skidmore. Docket No. 3:23-cv-00017 (S.D. Tex.).

Feb. 26, 2024 Twenty-four states led by West Virginia filed a motion for summary judgment against the Amended WOTUS Rule in the District of North Dakota. The states argue that the court should vacate the Amended Rule because it violates the Clean Water Act, the Administrative Procedure Act, the Commerce Clause, the Fifth Amendment Due Process Clause, and the Tenth Amendment. West Virginia et al. v. EPA et al., Docket No. 3:23-cv-00032 (D.N.D.).

Feb. 2, 2024 Texas and Idaho filed a motion for summary judgment, asking the Southern District of Texas to vacate EPA and ACE’s Amended WOTUS Rule. The states argue that the Amended Rule falls outside of the agency’s authority under the Clean Water Act and does not conform to the Supreme Court’s decision in Sackett. Texas et al. v. EPA et al., Docket No. 3:23-cv-00017 (S.D. Tex.).

Dec. 13, 2023 EPA filed answers to states’ and industries’ complaints, denying the groups’ allegations. West Virginia v. EPA, Docket No. 3:23-cv-00032 (D.N.D.).

Nov. 13, 2023 Industry groups and states filed amended complaints for declaratory relief arguing that EPA’s Amended Rule is unlawful and does not comply with Sackett. West Virginia v. EPA, Docket No. 3:23-cv-00032 (D.N.D.).

July 17, 2023 The Eighth Circuit grants EPA’s motion to hold in abeyance its appeal of an injunction blocking the waters of the United States rule in 24 states while it revises the rule in response to the Sackett v. EPA decision. EPA notes in its motion that the updated final rule could narrow the issues in the case going forward. West Virginia v. EPA, 8th Cir., No. 23-02411.

July 10, 2023 A judge in the Southern District of Texas grants the EPA’s motion to stay in a case brought by Texas, Idaho, and industry groups challenging EPA’s waters of the United States rule until the EPA revises the rule in response to the Supreme Court’s Sackett v. EPA decision. Texas v. EPA, S.D. Tex., No. 3:23-cv-00017.

June 26, 2023 EPA announces that it will revise its existing rule for waters of the United States by September 1 in response to the Sackett v. EPA decision limiting the applicability of the rule to wetlands.

May 25, 2023 The Supreme Court issues its decision in Sackett v. United States. Justice Alito delivers the Court’s opinion, holding that jurisdiction over adjacent wetlands requires “first, that the adjacent [body of water constitutes] . . . ‘water[s] of the United States,’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” EPA and the Army Corps of Engineers have stated that they will interpret WOTUS consistently with Sackett and the Corps announced that it paused its Approved Jurisdictional Determinations. Sackett et al. v. EPA et al., 598 U.S. 651 (2023).

May 10, 2023 The Sixth Circuit issued an injunction against the Biden administration’s WOTUS rule, extending an earlier injunction that was set to expire. The rule is enjoined in 27 states, where the pre-2015 regulatory regime is in place, and in effect in the rest of the country. Kentucky v. EPA, Case No. 23-05343 (6th Cir. May 10, 2023).

April 27, 2023 EPA proposed to promulgate federal baseline water quality standards (WQS) under the Clean Water Act for waters on over 250 Indian reservations, extending to reservations the framework of water quality protection that exists for most other waters of the United States. The baseline standards would be in effect until tribes adopt their own WQS for tribal waters. The comment period is open until August 3, 2023.

April 20, 2023 The Sixth Circuit stayed enforcement of the WOTUS rule in Kentucky. The WOTUS rule is now blocked in 27 states. Kentucky v. EPA, Nos. 23-5434/5345 (6th Cir.).

April 12, 2023 The District of North Dakota granted petitioners’ motion for a preliminary injunction, finding that petitioners are likely to succeed on the merits because the new WOTUS rule is arguably beyond EPA’s statutory scope of authority, the rule is arguably arbitrary and capricious, and that the rule raises “serious constitutional concerns.” This ruling blocked EPA from enforcing the WOTUS rule in 24 plaintiff states, and the rule is now blocked in 26 total states. West Virginia v. EPA, No. 3:23-cv-00032-PDW-ARS (N.D.).

Apr. 6, 2023 President Biden vetoed the House of Representatives Congressional Review Act Resolution. With this veto, both chambers would need to pass the measure by a two-thirds majority for it to become law.

Apr. 4, 2023 Kentucky filed an emergency appeal asking the Eastern District of Kentucky to issue an emergency injunction pending its appeal to the Sixth Circuit. Kentucky Chamber of Commerce v. EPA, No. 3:23-cv-00008-GFVT (E.D. Ky.).

Mar. 31, 2023 The Eastern District of Kentucky denied without prejudice Kentucky and industry groups’ motion for preliminary injunction, finding that the case does not yet present a case or controversy. Kentucky Chamber of Commerce v. EPA, No. 3:23-cv-00008-GFVT (E.D. Ky.).

Mar. 23, 2023 Intervenor industry groups in the West Virginia case filed a complaint asking the North Dakota District Court to issue declaratory and injunctive relief against the new WOTUS rule. West Virginia v. EPA, No. 3:23-cv-00032-PDW-ARS (N.D.).

Mar. 22, 2023 The District Court of North Dakota granted eighteen industry groups’ motion to intervene in the case that West Virginia and 23 other states filed against the WOTUS rule. West Virginia v. EPA, No. 3:23-cv-00032-PDW-ARS (N.D.).

Mar. 21, 2023 EPA files an answer to Texas and Idaho’s First Amended Complaint. Texas v. EPA, No. 3:23-cv-17 (S.D. Tx.).

Mar. 19, 2023 The Southern District of Texas granted a preliminary injunction blocking the new WOTUS rule in Texas and Idaho. The court also denied industry groups’ request for a national injunction. Texas v. EPA, No. 3:23-cv-17 (S.D. Tx.).

Feb. 22, 2023 The Kentucky Chamber of Commerce and several other industry groups sued EPA and Army Corps in the Eastern District of Kentucky, arguing that the final WOTUS rule is unlawful. Kentucky Chamber of Commerce v. EPA, No. 3:23-cv-00008-GFVT (E.D. Ky.).

Feb. 16, 2023 West Virginia and 23 other states sued EPA and the Army Corps in the North Dakota District Court, arguing that the final WOTUS rule is unlawful. West Virginia v. EPA, No. 3:23-cv-00032-PDW-ARS (N.D.).

Feb. 7-9 2023 Texas and several of its agencies filed a motion for preliminary injunction, asking the Southern District of Texas to block the rule within its borders. Bayou City Waterkeeper moved to intervene. Texas v. EPA, No. 3:23-cv-17 (S.D. Tx.).

Jan. 18, 2023 Texas filed a complaint in the Southern District of Texas arguing that the final WOTUS rule exceeds the agencies’ statutory authority under the CWA and violates the Administrative Procedure Act and several sections of the US Constitution. Texas asked the court to vacate the rule. Texas v. EPA, No. 3:23-cv-17 (S.D. Tx.).

Jan. 9, 2023 The petitioners in Sackett v. EPA submitted a letter to the Supreme Court arguing that the preamble of the final rule misconstrues the agencies’ authority under the Clean Water Act. Sackett v. EPA, No. 21-454.

Dec. 30, 2022 EPA and the Army Corps released their final rule revising the definition of WOTUS. The rule builds upon the currently effective, pre-2015 definition of WOTUS, but makes updates to reflect case law, the Clean Water Act, and scientific and technical recommendations. The Department of Justice filed a letter notifying the Supreme Court of the final rule and explaining that the rule is responsive to one of Justice Kagan’s questions from oral argument regarding which wetlands qualify as WOTUS. Sackett v. EPA, No. 21-454.

Oct. 3, 2022 The Supreme Court heard oral arguments in Sackett v. EPA. No. 19-35469 (2022).

Sep. 12, 2022 The White House Office of Management and Budget receives EPA’s final rule, Revised Definition of Waters of the United States, for review.

July 8, 2022 Petitioners filed reply briefs in the Supreme Court. Sackett v. EPA, No. 19-35469 (2022).

June 17, 2022 Several groups including environmental organizations, tribes, members of Congress, states, and former EPA Administrators filed amici in support of EPA. Sackett v. EPA, No. 21-454 (2022).

June 10, 2022 EPA filed a brief in the Supreme Court in Sackett v. EPA arguing for application of the significant-nexus test. No. 21-454 (2022).

Apr. 11-21, 2022 The Petitioners and amici filed their briefs in Sackett v. EPA. The Petitioners’ brief argued for a two-step test for the Court to adopt in determining when a wetland is regulated under WOTUS. The first step would evaluate whether the wetland is “inseparably bound” via continuous surface-water connection to another body of water. The second step would consider whether that body of water falls within the definition of a “water of the United States.” No. 21-454 (2022).

Jan. 5, 2022 The Army Corps announced it will define “waters of the United States” consistent with the pre-2015 regulatory regime in light of the District of Arizona’s August 30, 2021 order vacating and remanding the Navigable Waters Protection Rule in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency.

Jan. 2, 2022 The Supreme Court granted a petition for writ of certiorari on the question of whether “the Ninth Circuit set forth the proper test for determining whether wetlands are “waters of the United States” under the Clean Water Act” in Sackett v. EPA.

Nov. 18, 2021 EPA and Department of the Army, Corps of Engineers released a proposed rule to define the scope of waters protected under the CWA, rescinding the Trump Administration’s Navigable Waters Protection Rule.

Sept. 22, 2021 Petitioners file writ of certiorari with the Supreme Court appealing a Ninth Circuit decision’s application of Justice Kennedy’s “significant nexus” test. The petitioners urge the Court to determine whether Rapanos v. United States should be revisited to adopt plurality’s test, authored by Justice Scalia, for wetlands jurisdiction under the CWA. See Sackett v. EPA, 8 F.4th 1074 (9th Cir.).

Aug 30, 2021 The District Court for the District of Arizona remanded and vacated the Trump Administration’s Navigable Waters Protection rule. Agreeing with the Plaintiffs, the court found that the errors in the rules “involve fundamental, substantive flaws.” Pasqua Yaqui Tribe et al. v. EPA et al., Docket No. CV-20-00266 (D. Ariz.). In light of the Arizona decision, EPA indicated it will “halt” its process to reinstate the pre-2015 regulatory definition of “waters of the United States” and will interpret the term “consistent with the pre-2015 regulatory regime until further notice.”

Aug. 16, 2021 The Ninth Circuit held that the federal jurisdiction applies to wetlands in Idaho based on Justice Kennedy’s “significant nexus” approach for determining jurisdiction. Sackett v. EPA, Docket No. No. 19-35469 (9th Cir.).

March 2, 2021 The Tenth Circuit reversed a lower court decision halting implementation of the Navigable Waters Protection Rule, finding the state of Colorado failed to show it would “suffer irreparable injury” without a preliminary injunction. Colorado v. EPA, No. 20-1238 (10th Cir.).

Nov. 2020 The U.S. Court of Appeals for the Tenth Circuit heard oral argument in the appeal of the stay of the rule within Colorado. Colorado v. EPA, No. 20-1238 (10th Cir.). Fifteen states, led by California Attorney General Xavier Becerra, filed a motion for summary judgment in the Northern District of California to strike down the Navigable Waters Protection Rule. California v. Wheeler, No. 3:20-cv-03005 (N.D. Cal.).

June 25, 2020 The Army Corps and EPA filed an appeal of the district court’s decision to grant a stay and halt implementation of the rule in Colorado. Colorado v. EPA, No. 20-1238 (10th Cir.)

June 22, 2020 The Navigable Waters Protection Rule took effect in every state except Colorado. That same day, a number of groups filed lawsuits in federal district courts challenging the rule. Navajo Nation v. Wheeler, No. 2:20-cv-00602 (D.N.M.); Puget Soundkeeper Alliance v. EPA, No. 2:20-cv-00950 (W.D. Wash.); Pascua Yaqui Tribe v. EPA, No. 4:20-cv-00266 (D. Ariz.).

June 19, 2020 The District of Colorado granted a stay, halting implementation of the rule within the state. Colorado v. EPA, No. 1:20-cv-01461 (D. Colo.).

May 2020 Eighteen states and New York City requested a nationwide injunction or stay to halt implementation of the Navigable Waters Protection Rule until the litigation is resolved. Industry groups and opposing states intervene. California v. Wheeler, No. 3:20-cv-03005 (N.D. Cal.); Colorado v. EPA, No.1:20-cv-01461 (D. Colo.).

Jan. 23, 2020 EPA and Army Corps finalized the Navigable Waters Protection Rule. The new rule reduced the number of waterways and wetlands protected by the Clean Water Act, as compared to the 2015 Clean Water Rule and the pre-2015 regulations.

Dec. 20, 2019 A coalition of 14 states, New York City, and Washington, DC filed a lawsuit challenging the repeal of the Clean Water Rule. New York v. EPA, No. 19-11673 (S.D.N.Y.).

Oct. 22, 2019 EPA and Army Corps finalized the repeal of the Clean Water Rule and the reinstatement of the previous regulations (adopted in 1986) while they continue to work to finalize their new rule defining WOTUS.

March 11, 2019 EPA and Army Corps announced that they will no longer defend the delay rule in court. The delay rule was set to expire in 2020 and was put in place to prevent the Clean Water Rule from going into effect. The Clean Water Rule remained in effect in some states and the pre-2015 regulations remained in effect in others.

Dec. 11, 2018 EPA and the Army Corps released the proposed rule revising the definition of WOTUS. The proposal sought to limit the definition of WOTUS by excluding ephemeral waters that flow in response to rain and reducing the amount of protected wetlands.

Nov. 26, 2018 The District Court for the Western District of Washington held that the EPA made an error when it delayed the 2015 Clean Water Rule “without providing the public with a meaningful opportunity to comment.” The Clean Water Rule then went into effect in the 23 states where federal judges had not stayed it. Puget Soundkeeper Alliance v. Wheeler, No. C15-1342-JCC (W.D. Wash.).

Sept. 12, 2018 The U.S. District Court for the Southern District of Texas enjoined the implementation of the Clean Water Rule in Texas, Louisiana, and Mississippi, and the rule is now halted in 27 states. Am. Farm Bureau Fed’n v. EPA, No. 15-cv-165 (S.D. Tex.).

June 29, 2018 EPA and the Army Corps issued a supplemental notice of proposed rulemaking to the July 2017 proposal to repeal the 2015 Clean Water Rule. The supplemental notice clarifies that the agencies propose to permanently repeal the entire Clean Water Rule and put the pre-2015 regulations back in place while they finalize a new definition of WOTUS.

June 13, 2018 The Waterkeeper Alliance and other conservation groups filed a lawsuit in the District Court for the Northern District of California challenging both the delay rule and provisions of the Clean Water Rule for being legally and scientifically flawed. Waterkeeper v. Pruitt, No.18-cv-3521 (N.D. Cal.).

June 11, 2018 The District Court for the Southern District of Georgia granted an injunction and halted the Clean Water Rule from taking effect in Georgia, Alabama, Florida, Indiana, Kansas, North Carolina, South Carolina, Utah, West Virginia, Wisconsin and Kentucky. The rule is now halted in 24 states because the injunction granted by the U.S. District Court for the District of North Dakota remains in effect. Georgia v. Pruitt, No. 2:15-cv-79 (S.D. Ga.).

May 1, 2018 The District Court for the District of North Dakota denied the Trump administration’s request to delay litigation until February 2019. North Dakota v. EPA, No. 3:15-cv-059 (D.N.D.).

Feb. 2018 EPA finalized the rule that delays the effective date of the 2015 Clean Water Rule for two years, to Feb. 6, 2020. That same day, a group of states and multiple environmental groups filed suits challenging EPA’s delay rule. New York et al. v. EPA, No. 1:18-cv-1030 (S.D.N.Y.); S. Carolina Coastal Conservation League v. Pruitt, No. 2-18-cv-330 (D.S.C.), NRDC v. EPA, No. 18-cv-1048 S.D.N.Y.). The Sixth Circuit lifted its 2015 stay of the Clean Water Rule, but EPA’s delay rule is now in effect, so the Clean Water Rule does not go into effect.

Nov. 16, 2017 EPA proposed to delay the effective date of the 2015 rule for two years after “the date of final action on this proposal.”  This will likely push the effective date to 2020.

July 27, 2017 EPA and Army Corps published a proposal to rescind the Clean Water Rule.

March 6, 2017 EPA and Army Corps published their intent to “review and rescind or revise” the Clean Water Rule.

Oct. 9, 2015 The Sixth Circuit issued a stay, putting a nationwide hold on the Clean Water Rule. Ohio v. U.S. Army Corps of Eng’rs, Docket Nos. 15-3799/3822/3853/3887 (6th Cir.).

Aug. 27, 2015 The U.S. District Court for the District of North Dakota issued a preliminary injunction, preventing EPA and Army Corps from implementing the 2015 Clean Water Rule in the 13 states that challenged the rule in that court. North Dakota v. EPA, Docket No. 3:15-cv-059 (D.N.D.).

June 29, 2015 EPA and Army Corps published the final Clean Water Rule.