Legal challenges may dam WOTUS rule before it flows, NALC attorney says

“What is the Supreme Court going to say? Because it is very likely that this ruling will have a huge impact on the EPA’s new WOTUS rule," Rollins said

By Mary Hightower
U of A System Division of Agriculture

March 16, 2023

Fast facts:

• Sackett decision could hit at WOTUS definition
• New WOTUS rule to go into effect March 20
• Webinar replay online

(588 words)

(Newsrooms: with art of Rollins )

UNDATED — A pending U.S. Supreme Court decision “is the ticking time bomb” for the Environmental Protection Agency’s new Waters of the United States rule, said Brigit Rollins, staff attorney for the National Agricultural Law Center.

The EPA rule, which goes into effect March 20, has a new definition for “waters of the United States,” or WOTUS, which is central to enforcement of the Clean Water Act. The Clean Water Act was a landmark piece of legislation passed by Congress in 1972 to help improve water quality nationwide.

WOTUS — EPA's new WOTUS rule faces multiple challenges, says National Agricultural Law Center attorney Brigit Rollins. (U of A System Division of Agriculture image)

What happens to WOTUS will have broad ramifications, including for those in the agriculture industry. Defining “waters of the United States” has proven a difficult task over the decades.

Sackett vs. EPA

The case before the U.S. Supreme Court is Sackett vs. EPA. While the case is not a direct challenge to the WOTUS rule, it is connected to a 2006 high court case that prompted the EPA to redefine WOTUS in 2015.

“What is the Supreme Court going to say? Because it is very likely that this ruling will have a huge impact on the EPA’s new WOTUS rule,” Rollins said in a National Agricultural Law Center webinar Wednesday.

Sackett “has asked the high court to adopt the plurality opinion authored by Justice Antonin Scalia in Rapanos v. U.S., which concluded that the definition of WOTUS should be limited only to traditionally navigable waters, non-navigable waters that were relatively permanent and continuously flowing, and then any wetlands that shared a continuous surface water connection with such waters,” Rollins said.

“If the Supreme Court agrees with Sackett and does adopt the Scalia’s plurality opinion from Rapanos, then it would require EPA to go back to the drawing board on WOTUS.”

Three court cases + one CRA

In addition to Sackett, a lot could happen to the new WOTUS rule before it takes effect, Rollins said.

The EPA is facing legal challenges in federal courts in Texas, Kentucky and North Dakota. Each case has its own profile, but there are three common claims raised in each case, Rollins said:

• First, that the 2022 rule means the jurisdiction for the Clean Water Act goes too far — well beyond the traditional legal definition of “navigable waters.”
• Secondly, the suits claim that the rule violates the 10th Amendment by going beyond the scope of waters being defined as navigable in terms of interstate and foreign commerce.
• The third claim is staked on the “Major Questions Doctrine,” which in this case suggests that “Congress did not clearly empower the EPA with that authority” to oversee waterways not regarded as navigable for commerce.

Also in the mix is a Congressional Review Act, or CRA joint resolution of disapproval to overturn the rule, which passed in the House earlier this month.

“President Biden has stated that he would veto this if it came to his desk,” Rollins said. “It does seem unlikely that … the CRA challenge will be successful.”

Injunction junction

“In all three of the lawsuits, certainly in the Texas lawsuit, there have been motions for injunctions introduced,” Rollins said. “It is possible we will see a court issue a ruling before that March 20 goes into effect.

“And certainly, if the court thinks an injunction is necessary, they’re going to want to get that out before the rule goes into effect,” she said.

Rollins will present a follow-up webinar with WOTUS updates on July 19.

For updates on WOTUS and other agricultural law developments, subscribe free of charge to The Feed, the NALC’s twice-monthly newsletter highlighting recent legal developments facing agriculture.

For information about the National Agricultural Law Center, visit nationalaglawcenter.org or follow @Nataglaw on Twitter. The National Agricultural Law Center is also on Facebook and LinkedIn.

About the National Agricultural Law Center
The National Agricultural Law Center serves as the nation’s leading source of agricultural and food law research and information. The NALC works with producers, state and federal policymakers, Congressional staffers, attorneys, land grant universities, and many others to provide objective, nonpartisan agricultural and food law research and information to the nation’s agricultural community.

The NALC is a unit of the University of Arkansas System Division of Agriculture and works in close partnership with the USDA Agricultural Research Service, National Agricultural Library.

About the Division of Agriculture

The University of Arkansas System Division of Agriculture’s mission is to strengthen agriculture, communities, and families by connecting trusted research to the adoption of best practices. The Division of Agriculture conducts research and extension work within the nation’s historic land grant education system through the Agricultural Experiment Station and the Cooperative Extension Service.

The Division of Agriculture is one of 20 entities within the University of Arkansas System. It has offices in all 75 counties in Arkansas and faculty on five system campuses.

The University of Arkansas System Division of Agriculture offers all its Extension and Research programs to all eligible persons without regard to race, color, sex, gender identity, sexual orientation, national origin, religion, age, disability, marital or veteran status, genetic information, or any other legally protected status, and is an Affirmative Action/Equal Opportunity Employer.

# # #
Media contact: Mary Hightower
mhightower@uada.edu
@AgInArk