Yesterday, a federal district court in North Dakota granted a preliminary injunction blocking implementation of a new Environmental Protection Agency rule defining “waters of the United States” under the Clean Water Act. This rule is important because many of the CWA’s regulatory prohibitions, including the prohibition on developing wetlands without a federal permit, apply only in “waters of the United States” (WOTUS). The Supreme Court rebuked the EPA and the Army Corps of Engineers for applying an unduly expansive WOTUS definition (see SWANCC v. U.S. Army Corps and Rapanos v. United States), and this rule is an effort to reassert and clarify the scope of federal regulatory jurisdiction under the CWA.
The suit in question was filed by 13 states (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming), which claimed, among other things, that the WOTUS rule is a threat to state sovereignty because it asserts federal jurisdiction over wetlands and waters (and even some relatively dry land) that should be subject to state government control. As a general matter (and as the Supreme Court has recognized) land-use control is generally beyond the scope of federal power. In this case, the district court concluded that the states were likely to succeed on the merits as the EPA had adopted an “exceptionally expansive” view of its own jurisdiction under the CWA. According to the court, the WOTUS rule “allows EPA regulation of waters that do not bear any effect on the ‘chemical physical, and biological integrity’ of any navigable-in-fact water,” and therefore exceeds the limits on federal regulatory authority identified by the Supreme Court in Rapanos.
There are some other legal issues in this case, including questions about which court(s) have jurisdiction to hear challenges to the WOTUS rule. In a nutshell, the CWA provides that some challenges to regulatory actions may proceed in district courts, whereas others must be filed in appellate courts. The district court here concluded that the WOTUS rule is of the former sort. Other courts, in which parallel suits against the WOTUS rule have been filed, have reached the opposite conclusion.
Responding to the court’s decision, the EPA announced that it will apply the WOTUS rule in states that did not join this suit. This will create the somewhat incongruous (but hardly unprecedented) situation in which the scope of asserted federal regulatory jurisdiction will be more expansive and more well-defined in some states than in others. This has happened before. In 1993, the U.S. Court of Appeals for the Fourth Circuit invalidated the so-called “migratory bird rule,” under which the EPA and the Army Corps asserted jurisdiction over waters and wetlands based upon the potential presence of migratory birds. For several years, until the rule was voided by the U.S. Supreme Court in SWANCC, the EPA and the Army Corps did not apply the rule within the Fourth Circuit, but applied it everywhere else.
For some background on the underlying issues of federal regulatory jurisdiction under the CWA, and the Supreme Court decisions to which the WOTUS rule is responding, see this article (which is based upon this testimony) and this set of essays.
A final note: Many press accounts refer to the WOTUS rule as an effort to protect “drinking water.” This is quite misleading. Most drinking water in the United States comes from drinking water systems that are regulated under the federal Safe Drinking Water Act. The CWA is primarily concerned with surface waters (rivers, lakes, streams, etc.). While the condition of surface waters can have an effect on drinking water, the CWA is not (and has never been) the primary protector of drinking water. Further, the most controversial aspects of the WOTUS rule relate to the assertion of federal jurisdiction over waters and wetlands with minimal connections to interstate waters — that is, those waters and wetlands that are the least likely to have an effect on drinking water quality. Therefore, to characterize the debate over the WOTUS rule as a debate over “drinking water protections” is highly misleading.
UPDATE: On Friday, the plaintiff states informed the court that the U.S. EPA had announced it would continue to apply the WOTUS rule in states that did not challenge the injunction. Late Friday, the district court responded with an order for supplemental briefing on whether the injunction “applies nationally or in a limited geographic area.” Briefs are due on Tuesday, September 1.