Defining Waters of the United States (WOTUS)

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.).

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.).

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.).

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.).

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.).

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.

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.

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.

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 ux. v. EPA et al., 598 U.S. ____ (2023).