WOTUS Update

2023 was a landmark year for Clean Water Act (“CWA”) regulation with a new definition of the key term “waters of the United States” (“WOTUS”) issued by the Environmental Protection Agency (“EPA”) at the start of the year, a Supreme Court decision released in May, and an updated WOTUS definition from EPA in August. While 2024 is unlikely to be as dynamic as the previous year, on-going lawsuits challenging EPA’s updated WOTUS definition will continue to impact how the CWA is implemented throughout the country.

By the end of 2023, the current WOTUS definition that EPA released last August was enjoined in twenty-seven states. These states initially filed three separate lawsuits against EPA to challenge the WOTUS definition the agency released in early 2023. They have since updated those lawsuits to address the updated WOTUS rule EPA released following the Supreme Court’s ruling in Sackett v. EPA to conform the definition to the Court’s decision. 

The arguments raised by the plaintiff states in all three lawsuits are largely similar. In their initial filings challenging the first of EPA’s 2023 WOTUS definitions, plaintiffs in State of Texas v. EPA, No. 3:23-cv-00017 (S.D. Tex.), State of West Virginia v. EPA, No. 3:23-cv-00032 (D. N.D.), and Commonwealth of Kentucky v. EPA, No. 23-5343 (6th Cir.) raised three primary claims. First, that the 2023 WOTUS definition exceeded the authority granted to EPA by the CWA. Second, that the definition violates the Tenth Amendment of the United States Constitution which delegates the power to regulate land and water resources to the states. Finally, the definition violates the Major Questions Doctrine because Congress did not give EPA clear authorization to adopt the 2023 WOTUS rule.

After the Supreme Court issued its decision in Sackett v. EPA, all three of the lawsuits challenging EPA’s WOTUS rule were stayed while EPA revised the definition to bring it in line with the Court’s ruling. EPA released its updated WOTUS definition in August, removing references to wetlands that did not share a continuous surface connection with jurisdictional waters, and references to any waters that were not “relatively permanent.” Shortly afterwards, the plaintiff states revived their lawsuits, pivoting to challenge EPA’s updated WOTUS rule.

The amended lawsuits make largely the same arguments against the updated 2023 WOTUS rule as they did against the initial 2023 WOTUS rule. Once again, the states argue that the WOTUS definition exceeds the authority granted under the CWA, claiming that the updated definition incorporates waters that are outside of the relatively permanent test the Supreme Court articulated in the Sackett ruling. Similarly, the states claim that updated definition continues to violate both the Tenth Amendment and the Major Questions Doctrine by regulating an area of vast economic importance without clear Congressional authorization. Additionally, the states claim that the updated WOTUS definition was issued without an opportunity for public comment in violation of federal law.

The National Agricultural Law Center will continue to provide updates as these cases progress. For more information on WOTUS, check out the resources available on our website.

Rollins, Brigit. “WOTUS Update.Southern Ag Today 4(5.5). February 2, 2024. Permalink