April 2024 WOTUS Litigation Update – Water

The revision of the rule defining “waters of the United
States” (“WOTUS”; the “Post-Sackett Rule”)
has not resolved the litigation surrounding the WOTUS definition.
In fact, it seems that litigation is heating up, with various new
developments on multiple fronts. This post will give a short
summary of the status of the three main cases on the topic, as well
as highlight a new case that could further impact the
implementation of the Clean Water Act.

As a brief reminder, there are three pending cases that are
impacting the implementation of the Post-Sackett Rule:

1. Texas Litigation–filed in the Southern District of Texas, with
   an injunction effective for Texas and Idaho;




2. Kentucky Litigation–filed in the Eastern District of Kentucky,
   with an injunction effective for Kentucky (issued by the Sixth
   Circuit Court of Appeals);




3. North Dakota Litigation–filed in the District of North Dakota,
   with an injunction effective for 24 states, including Ohio.

Texas Litigation – Texas, Idaho, and the industry
group co-plaintiff’s have asked the judge to invalidate the
Post-Sackett Rule. In a February 2024 filing, the plaintiffs claim
that the Post-Sackett Rule is overly vague and is not compatible
with the Sackett ruling. In response, the federal
government has challenged the states and industry groups’
standing in the case.

Kentucky Litigation – Kentucky filed in December
to revive its lawsuit challenging the federal government’s
rule. The federal government has challenged Kentucky’s standing
in the case, which Kentucky has opposed. The 6^th Circuit
Court of Appeals has not ruled on this.

North Dakota Ligation – There have been no
substantive rulings in the North Dakota Litigation. The states
filed an amended complaint in the fall and a Motion for Summary
Judgment in February. The federal government has not filed a
response to that motion.

New Litigation

Despite the three pending cases challenging the Post-Sackett
Rule, a landowner in North Carolina (where there is no injunction
and the Post-Sackett Rule is being implemented) has filed a citizen
suit seeking to temporarily and permanently enjoin the
implementation of the rule nationwide.¹ The heart of the
North Carolina case is that the USACE and USEPA not only omitted
the “indistinguishability” requirement from Justice
Alito’s majority opinion in the Sackett decision from
the amended rule, but the federal agencies have also failed to
enforce the Clean Water Act consistent with the Sackett decision.
As a result, the complaint alleges, the federal agencies are
asserting federal jurisdiction over waters that should not be
considered WOTUS based on the Sackett decision.

We will continue to monitor the litigation in all these cases
and provide updates.

Footnote

1. That case is White v. U.S. Environmental
Protection Agency, 2:24-CV-00013-BO-RJ, filed in the
Eastern District of North Carolina.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.