West Virginia, State of et al v. U.S. Environmental Protection Agency et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
States of West Virginia, North Dakota, )
Georgia, Iowa, Alabama, Alaska, Arkansas, ) ORDER GRANTING
Florida, Indiana, Kansas, Louisiana, ) PLAINTIFFS’ MOTION FOR
Mississippi, Missouri, Montana, Nebraska, ) PRELIMINARY INJUNCTION
New Hampshire, Ohio, Oklahoma, )
South Carolina, South Dakota, Tennessee, )
Utah, Virginia, and Wyoming, )
)
Plaintiffs, )
)
and )
)
American Farm Bureau Federation, )
American Petroleum Institute, American )
Road and Transportation Builders )
Association, Associated General )
Contractors of America, Cass County Farm )
Bureau, Leading Builders of America, )
National Apartment Association, National )
Association of Home Builders of the United )
States, National Association of Realtors, )
National Cattlemen’s Beef Association, )
National Corn Growers Association, )
National Mining Association, National )
Multifamily Housing Council, National )
Pork Producers Council, National Stone, )
Sand and Gravel Association, North Dakota )
Farm Bureau, Public Lands Council, )
and U.S. Poultry and Egg Association, )
)
Intervenor-Plaintiffs, )
)
vs. ) Case No. 3:23-cv-032
)
U.S. Environmental Protection Agency, )
Michael S. Regan, in his official capacity )
as Administrator of the U.S. Environmental )
Protection Agency, Michael L. Connor, in )
his official capacity as Assistant Secretary )
of the Army for Civil Works, and )
LTG Scott A. Spellmon, in his official )
capacity as Chief of Engineers and )
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Commanding General, U.S. Army )
Corps of Engineer, )
)
Defendants, )
)
and )
)
Chickaloon Village Traditional Council, )
Rappahannock Tribe, Tohono O’odham )
Nation, and White Earth Band of )
Minnesota Chippewa Tribe, )
)
Intervenor-Defendants. )
______________________________________________________________________________
Now before the Court is the Plaintiffs’ “Motion for Preliminary Injunction” filed on February
21, 2023. See Doc. No. 44. The Plaintiffs seek the entry of a preliminary injunction prohibiting the
Defendants from enforcing, implementing, applying, or giving effect to the Revised Definition of
“Waters of the United States.” See 88 Fed. Reg. 3004 (Jan. 18, 2023). The Defendants filed a
response in opposition to the motion on March 10, 2023. See Doc. No. 92. The Plaintiffs filed a
reply to the Defendants’ response on March 14, 2023. See Doc. No. 98. The Intervenor-Defendants
filed a response in opposition to the motion on March 31, 2023. See Doc. No. 120. The Plaintiffs
filed a reply to the Intervenor-Defendants’ response on April 5, 2023. See Doc. No. 130. For the
reasons set forth below, the Plaintiffs’ motion for preliminary injunction (Doc. No. 44) is granted.
I. BACKGROUND
This is a lawsuit for declaratory and injunctive relief challenging a federal rule revising the
definition of “waters of the United States” under the Clean Water Act, 33 U.S.C. § 1521 et seq.,
which took effect on March 20, 2023. The Plaintiffs, a coalition of 24 states, filed their complaint
on February 16, 2023. See Doc. No. 1. Eighteen trade groups (“Business Intervenors”) moved to
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intervene as plaintiffs on February 22, 2023, and were granted leave to intervene on March 22, 2023.
See Doc. Nos. 54 and 110. Four Native American tribes moved to intervene as defendants on March
8, 2023, and were granted leave to intervene on March 31, 2023. See Doc. Nos. 87 and 118.
The Clean Water Act was passed by Congress in 1972 to “restore and maintain the chemical,
physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The Clean Water
Act, and the various definitions of “waters of the United States” (“WOTUS”), has spawned a vast
array of regulations that define the extent to which the United States Environmental Protection
Agency and the United States Army Corps of Engineers (hereinafter referred to collectively as the
“EPA”) possess regulatory jurisdiction over the Clean Water Act. Congress has authorized the EPA
to administer the Clean Water Act, 33 U.S.C. § 1251(d), and the United States Army Corps of
Engineers to issue permits for projects on land or water under the Act’s jurisdiction. Congress has
attempted to craft the Clean Water Act “to recognize, preserve, and protect the primary
responsibilities and rights of States to prevent, reduce, and eliminate pollution [and] to plan the
development and use (including restoration, preservation, and enhancement) of land and water
resources.” 33 U.S.C. § 1251(b).
The latest Revised Definition of “Waters of the United States” (“ the 2023 Rule”), 88 Fed.
Reg. 3004 (Jan. 18, 2023) defines “waters” to include the following categories:
P traditional navigable waters, the territorial seas, and interstate waters (“paragraph
(a)(1) waters”);
P impoundments of ‘waters of the United States’ (“paragraph (a)(2)
impoundments”);
P tributaries to traditional navigable waters, the territorial seas, interstate waters, or
paragraph (a)(2) impoundments when the tributaries meet either the relatively
permanent standard or the significant nexus standard (“jurisdictional tributaries”);
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P wetlands adjacent to paragraph (a)(1) waters, wetlands adjacent to and with a
continuous surface connection to relatively permanent paragraph (a)(2)
impoundments, wetlands adjacent to tributaries that meet the relatively permanent
standard, and wetlands adjacent to paragraph (a)(2) impoundments or jurisdictional
tributaries when the wetlands meet the significant nexus standard (“jurisdictional
adjacent wetlands”); and
P intrastate lakes and ponds, streams, or wetlands not identified in paragraphs (a)(1)
through (4) that meet either the relatively permanent standard or the significant
nexus standard (“paragraph (a)(5) waters”).
88 Fed. Reg. at 3005–06.
This case challenges and seeks to enjoin the implementation of the new 2023 Rule, which
went into effect on March 20, 2023. The Plaintiffs have commenced suit on statutory and
constitutional grounds. The Plaintiffs allege the 2023 Rule runs roughshod over the Administrative
Procedure Act (“APA”) in the following manner: (1) the 2023 Rule is arbitrary & capricious, 5
U.S.C. § 706(2)(A); (2) the 2023 Rule is “contrary to constitutional right, power, privilege, or
immunity,” id. § 706(2)(B); (3) the 2023 Rule exceeds statutory authority, id. § 706(2)(C); and (4)
the 2023 Rule was promulgated without observance of required procedure id. § 706(2)(D). See Doc.
No. 1, ¶ 6. In addition, the Plaintiffs contend the new 2023 Rule violates the Commerce Clause, the
Tenth Amendment, the Due Process Clause, and the Non-Delegation Doctrine. Id.
II. THE HISTORY OF “WOTUS”
The Clean Water Act is one of the country’s most important environmental laws.
Unfortunately, the Act has also created a litany of chaos and uncertainty around the country. There
have been an endless stream of lawsuits and legal challenges since at least 2015 which have
primarily dealt with issues concerning agency authority and what specific “waters of the United
States” are subject to federal jurisdiction versus state protections and control. Congress crafted the
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Clean Water Act to restore and maintain the country’s water, but it also recognized that the States
have primary responsibility and rights over their land and resources. 33 U.S.C. § 1251(b). The EPA
can certainly regulate water resources with statutory authorization. The confusion that has pervaded
the Clean Water Act over the years, combined with its varied rules and regulations, is that only some
of the country’s waters are subject to federal jurisdiction, namely “navigable waters” as defined by
Congress as “waters of the United States.” 33 U.S.C. § 1362 (7), (12).
Over the years there have been a multitude of legal challenges, administrative appeals,
lawsuits, and more appeals that have led to many different definitions of “waters of the United
States.” The EPA, in its response to this case, attached a memorandum which outlines the extensive
litigation that has occurred as a result of the federal agencies’ rulemaking over the last decade. See
Doc. No. 92-3.
On April 21, 2014, the EPA and the U.S. Army Corps of Engineers issued a proposed rule
to change the definition of “waters of the United States” under the Clean Water Act. Following a
period of comment, the EPA promulgated a final rule on June 29, 2015, which became effective
August 28, 2015.
Thereafter, several parties initially brought suit in both federal district courts and appellate
courts. The day before the 2015 Clean Water Rule’s August 28, 2015, effective date, the District
Court for the District of North Dakota (Judge Ralph Erickson) preliminarily enjoined the rule in 13
states. The North Dakota district court enjoined the 2015 Clean Water Rule from going into effect
in Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New
Mexico, North Dakota, South Dakota, and Wyoming. North Dakota v. EPA, 127 F. Supp. 3d 1047
(D.N.D. 2015).
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Petitions filed in the courts of appeals seeking review of the 2015 Clean Water Rule were
consolidated in the United States Court of Appeals for the Sixth Circuit. The federal agencies
argued that the Sixth Circuit had subject matter jurisdiction to review the rule, while other parties
argued that jurisdiction lay with the federal district courts. Some parties argued that the rule should
be stayed. On October 9, 2015, the Sixth Circuit issued an order staying the 2015 Clean Water Rule
nationwide “pending determination of [the court’s] jurisdiction” and recognizing that its order would
restore the “familiar, if imperfect” pre-2015 regulatory regime. In re EPA & Dep’t of Def. Final
Rule, 803 F.3d 804, 806, 808 (6th Cir. 2015).
On January 13, 2017, the United States Supreme Court granted certiorari on the question of
whether the courts of appeals had original jurisdiction to review challenges to the 2015 Clean Water
Rule. See Nat’l Ass’n of Mfrs. v. Dep’t of Def., 137 S. Ct. 811 (2017). A year later—on January
22, 2018—the Court issued a unanimous opinion holding that the rule was subject to direct review
in the federal district courts. Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 624 (2018). In
response to the Supreme Court’s decision the Sixth Circuit lifted its nationwide stay of the 2015
Clean Water Rule and dismissed the corresponding petitions for review. See In re Dep’t of Def. &
EPA Final Rule, 713 Fed. App’x. 489 (6th Cir. 2018).
Following the dissolution of the Sixth Circuit’s nationwide stay, the 2015 Clean Water Rule
did not go back into effect due to the “Applicability Date Rule”—a rule that the agencies had issued
on February 6, 2018, that added an applicability date of February 6, 2020. The Applicability Date
Rule restored the pre-2015 regulatory regime. On August 16, 2018—six months after the rule had
been issued—the District Court for the District of South Carolina vacated and enjoined the rule
nationwide. See South Carolina Coastal Conservation League v. Pruitt, 318 F. Supp. 3d 959 (D.S.C.
2018).
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After the Applicability Date Rule was vacated in August 2018, the 2015 Clean Water Rule
went back into effect, except in those jurisdictions where the rule had been enjoined. Pursuant to
the North Dakota district court’s preliminary injunction, the 2015 Clean Water Rule did not go into
effect in Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New
Mexico, North Dakota, South Dakota, and Wyoming. North Dakota v. EPA, 127 F. Supp. 3d 1047
(D.N.D. 2015). As the result of another preliminary injunction, the 2015 Clean Water Rule also did
not go into effect in Alabama, Georgia, Florida, Indiana, Kansas, Kentucky, North Carolina, South
Carolina, Utah, West Virginia, and Wisconsin. Georgia v. Pruitt, 326 F. Supp. 3d 1356 (S.D. Ga.
2018). In these 24 states, the EPA continued to implement the pre-2015 regulatory regime following
vacatur of the Applicability Date Rule.
In September 2018, three more states obtained a preliminary injunction against the 2015
Clean Water Rule—Texas, Louisiana, and Mississippi—and the North Dakota district court
expanded the scope of its preliminary injunction to cover the state of Iowa. The result was there
were 28 states in which the 2015 Clean Water Rule was not in effect. See Texas v. EPA, No. 3:15-
cv-162, Dkt. No. 140 (S.D. Tex. Sept. 12, 2018); North Dakota v. EPA, No. 3:15-cv-59, Dkt. No.
250 (D.N.D. Sept. 18, 2018).
In July 2019, the Oregon district court issued a preliminary injunction barring
implementation of the 2015 Clean Water Rule in Oregon. Or. Cattlemen’s Ass’n v. EPA, No. 3:19-
cv-564, Dkt. No. 58 (D. Or. July 26, 2019), vacated as moot Dkt. No. 81 (Mar. 2, 2020).
As a result of the legion of court orders, the EPA continued to implement both the 2015
Clean Water Rule and the pre-2015 regulatory regime in a patchwork of states until the 2019 Repeal
Rule went into effect on December 23, 2019. 84 Fed. Reg. 56626 (Oct. 22, 2019). The EPA then
returned to implementing the pre-2015 regulations.
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The EPA implemented the pre-2015 regulatory regime nationwide until the 2020 Navigable
Waters Protection Rule (“NWPR”) went into effect on June 22, 2020, in all states except Colorado.
85 Fed. Reg. 22250 (Apr. 21, 2020). In Colorado, the 2020 NWPR was subject to a preliminary
injunction issued by the United States District Court for the District of Colorado. Colorado v. EPA,
445 F. Supp. 3d 1295 (D. Colo. 2020); see also California v. Wheeler, 467 F. Supp. 3d 864 (N.D.
Cal. 2020) (denying motion for preliminary injunction as to other states). The Tenth Circuit later
reversed the Colorado district court’s order on appeal; and, as a result, the 2020 NWPR went into
effect in Colorado on April 26, 2021. Colorado v. EPA, 989 F.3d 874 (10th Cir. 2021); Colorado
v. EPA, No. 20-1238, ECF No. 010110512604 (Doc. 10825032) (10th Cir. Apr. 26, 2021).
Following the reversal of the Colorado district court’s preliminary injunction against the
2020 NWPR, the EPA implemented the 2020 NWPR nationwide until the rule was vacated on
August 30, 2021, by the United States District Court for the District of Arizona. Pascua Yaqui Tribe
v. EPA, 557 F. Supp. 3d 949 (D. Ariz. 2021). The EPA then returned to implementing the pre-2015
regulatory regime nationwide. See U.S. EPA, “Current Implementation of Waters of the United
States,” https://www.epa.gov/wotus/current-implementation-waters-united-states. Another court
issued an order vacating the 2020 NWPR on September 27, 2021. Navajo Nation v. Regan, 563 F.
Supp. 3d 1164 (D.N.M. 2021).
On January 20, 2021, President Biden signed Executive Order 13990, which revoked the
earlier Executive Order that had initiated the 2020 NWPR. The EPA then decided to revise the Rule
that is the subject of this litigation. That Rule took effect on March 30, 2023. Congress passed a
resolution overturning the Rule. H.R.J.Res. 27, 118th Congress (2023). The joint resolution was
designed to nullify the new 2023 Rule. The resolution was vetoed by the President on April 6, 2023,
with the following message.
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I am returning herewith without my approval H.J. Res. 27, a resolution that
would disapprove the revised definition of “Waters of the United States”.
The 2023 revised definition of “Waters of the United States” carefully sets
the bounds for which bodies of water are protected under the Clean Water Act. It
provides clear rules of the road that will help advance infrastructure projects,
economic investments, and agricultural activities — all while protecting water
quality and public health.
The resolution would leave Americans without a clear definition of “Waters
of the United States”. The increased uncertainty caused by H.J. Res. 27 would
threaten economic growth, including for agriculture, local economies, and
downstream communities. Farmers would be left wondering whether artificially
irrigated areas remain excluded or not. Construction crews would be left wondering
whether their waterfilled gravel pits remain excluded or not. The resolution would
also negatively affect tens of millions of United States households that depend on
healthy wetlands and streams.
Therefore, I am vetoing this resolution.
Suffice it to say the Clean Water Act, and the varied and different definitions of “waters of the
United States,” have created nothing but confusion, uncertainty, unpredictability, and endless
litigation throughout this country to date.
III. THE CLEAN WATER ACT AND RAPANOS v. UNITED STATES
The Supreme Court has also struggled for decades trying to interpret the phrase “waters of
the United States” under the Clean Water Act. See 33 U.S.C. § 1362(7). The meaning of “waters
of the United States” was considered by the United States Supreme Court in the consolidated cases
of Rapanos v. United States and Carabell v. United States. 547 U.S. 715 (2006). This case
addressed the jurisdiction over waters of the United States under the Clean Water Act. 33 U.S.C. §
1251. As previously noted, the Clean Water Act was enacted by Congress “to restore and maintain
the chemical, physical, and biological integrity of the Nation’s waters.” Id. One of the means to
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achieve that purpose is a prohibition on the discharge of any pollutants, including dredged or fill
material, into “navigable waters” except if done in compliance with certain specified sections of the
Act. 33 U.S.C. § 1311(a) and 33 U.S.C. § 1362(12)(a). In most cases that means compliance with
and obtaining a permit under Sections 402 or 404 of the Clean Water Act.
The Clean Water Act defines the term “discharge of a pollutants as” “any addition of any
pollutants to navigable waters from any point source” and further provides that “[t]he term
‘navigable waters’ means the waters of the United States, including the territorial seas.” 33 U.S.C.
§ 1362(7). See also 33 C.F.R. § 328.3(a) and 40 C.F.R. § 230.3(s). The term “pollutant” includes
traditional contaminants as well as solids such as “dredged soil,…rock, sand, [and] cellar dirt.” 33
U.S.C. § 1362(6).
The Act further provides that discharging pollutants into, dredging, or filling “navigable
waters” without a federal permit may result in significant civil or criminal penalties. See 33 U.S.C.
§§ 1311, 1319, 1342, 1344. A person or entity who violates the Clean Water Act’s permit
requirement faces monetary penalties up to $25,000 per day, imprisonment up to one year, or both.
33 U.S.C. § 1319(c)(1). The consequences of the new 2023 Rule at issue are severe and significant.
As revealed in the Plaintiff’s Memorandum in Support of the Motion for Preliminary
Injunction (Doc. No. 44-1), the federal permit process can take years and upwards of six figures to
secure. See United States Army Corps of Eng’rs v. Hawkes Co., 578 U.S. 590, 594 (2016) (an
average specialized individual applicant for permits spends 788 days and $271,596). A general
permit takes applicants an average of 313 days and $28,915 to complete. Id. at 595. The States each
have major obligations under the permit programs and must enact and revise the required water
quality standards under the Act.
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In the past the Supreme Court has been critical of the agency’s interpretation of “waters of
the United States.” For example, in Solid Waste Agency v. United States Army Corps of Eng’rs, 531
U.S. 159 (2001), the Supreme Court rejected the Corps’ interpretation of isolated sand and gravel
pits that “seasonably ponded” as falling within the definition of “waters of the United States.” 531
U.S. 159, 164, 172-74. This was an effort by the EPA and the Corps to reach “nonnavigable,
isolated, interstate waters” that migratory birds used as habitat. The Supreme Court said such efforts
raised significant constitutional questions that encroach upon traditional state powers. Id. In
Rapanos v. United States, the Supreme Court addressed the issue of when the federal government
can apply the Clean Water Act by determining whether a wetland or tributary is a “water of the
United States.” 547 U.S. 715 (2006). The justices issued five separate opinions in Rapanos (one
plurality opinion, two concurring opinions, and two dissenting opinions), with no single opinion
commanding a majority of the Court.
Four justices, in a plurality opinion authored by Justice Scalia, rejected the argument that the
term “waters of the United States” is limited to only those waters that are navigable in the traditional
sense and their abutting wetlands. Rapanos, 547 U.S. 715, 731 (2006). The plurality concluded
the EPA’s regulatory authority should extend only to “relatively permanent, standing or
continuously flowing bodies of water” connected to traditional navigable waters, and to “wetlands
with a continuous surface connection to” such relatively permanent waters. Id. at 739-43. Justice
Scalia’s opinion created what is commonly referred to as the “relatively permanent” test.
Justice Kennedy did not join the plurality’s opinion but authored a concurring opinion
vacating and remanding the case to the Sixth Circuit Court of Appeals. Justice Kennedy agreed with
the plurality that the statutory term “waters of the United States” extends beyond waters that are
traditionally considered navigable. However, Justice Kennedy found the plurality’s interpretation
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of the scope of the Clean Water Act to be “inconsistent with the Act’s text, structure, and purpose[,]”
and he presented a different standard for evaluating jurisdiction over wetlands and other water
bodies. Justice Kennedy concluded that wetlands are “waters of the United States” “if the wetlands,
either alone or in combination with similarly situated lands in the region, significantly affect the
chemical, physical, and biological integrity of other covered waters more readily understood as
‘navigable.’ In contrast, when wetlands’ effects on water quality are speculative or insubstantial,
they fall outside the zone fairly encompassed by the statutory term ‘navigable waters.’” Id. at 780.
Thus, Justice Kennedy’s concurrence created the broader “significant nexus” test. This standard
essentially asks whether there is a “significant nexus” between the wetlands in question and
navigable waters in the traditional sense.
Four justices, in a dissenting opinion authored by Justice Stevens, concluded the EPA’s
interpretation of “waters of the United States” was a reasonable interpretation of the Clean Water
Act. Id. at 787-810. When there is no majority opinion in a Supreme Court case, controlling legal
principles may be derived from those principles espoused by five or more justices. Marks v. United
States, 430 U.S. 188 (1977). Thus, regulatory jurisdiction under the Clean Water Act exists over
a water body if either the plurality’s or Justice Kennedy’s standard is satisfied. The Eighth Circuit
has held that jurisdiction is proper under the Clean Water Act if “either the plurality or Justice
Kennedy’s test is met.” United States v. Bailey, 571 F. 3d 791, 799 (8th Cir. 2009).
As a result of the Rapanos decision, the four-justice plurality concluded the “relatively
permanent” test for determining whether wetlands were “waters of the United States.” 547 U.S.
715, 739, 742. On the other hand, Justice Kennedy’s concurrence suggested a different test referred
to as the “significant nexus” test. Id. at 779-80. This test limits “waters of the United States” to
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those waters which are “navigable in fact or that could reasonably so be made” and secondary waters
with a ‘significant nexus” to those waters. Id. at 759.
In October 2022, the Supreme Court heard oral arguments in Sackett v. EPA, 142 S. Ct. 896
(2022), which is a case on appeal from the Ninth Circuit Court of Appeals. In Sackett, the Ninth
Circuit applied Justice Kennedy’s “significant nexus” test to evaluate whether the EPA has
jurisdiction to regulate wetlands. Sackett v. United States EPA, 8 F.4th 1075 (9th Cir. 2021).
The issue currently before the Supreme Court is whether the Ninth Circuit set forth the proper test
to determine whether wetlands are “waters of the United States” under the Clean Water Act. All
parties expect the Sackett case will be decided by the end of the term. The issues presented in
Sackett go to the heart of this lawsuit.
IV. LEGAL DISCUSSION
A. STANDING
The EPA contends the Plaintiffs have not adequately demonstrated irreparable harm or
standing. See Doc. No. 99, pp. 8-12. The EPA argues that for this reason alone the request for a
preliminary injunction should be denied.
At the core of standing “is the principle that in order to invoke the power of a federal court,
a plaintiff must present a ‘case’ or ‘controversy’ within the meaning of Article III of the
Constitution.” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585 (8th Cir. 2009). To meet the
constitutional minimum for standing, a plaintiff must show the following:
(1) an injury in fact – an invasion of a legally protected interest which is (a) concrete
and particularized; and (b) actual or imminent, not conjectural or hypothetical;
(2) a causal connection between the injury and the conduct complained of, and
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(3) a likelihood – as opposed to a mere speculation – that a favorable decision will
redress the injury.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992); Nat’l Parks Conservation Ass’n v. E.P.A., 759
F.3d 969, 973 (8th Cir. 2014); see also Sarasota Wine Mkt., LLC v. Schmitt, 987 F.3d 1171 (8th Cir.
2021).
As to the issue of the State’s standing, it is well-established that “States are not normal
litigants for the purposes of invoking federal jurisdiction” and are owed “special solicitude.”
Massachusetts v. EPA, 549 U.S. 497, 518-20 (2007). “When special solicitude is appropriate, a state
can establish standing ‘without meeting all the normal standards for redressability and immediacy.’”
Texas v. United States (DACA), 50 F.4th 498, 514 (5th Cir. 2022) (quoting Massachusetts, 549 U.S.
at 517-18).
The EPA argues the States lack standing because “federal regulation of water or land for the
purpose of pollution control is not a cognizable harm to ‘state sovereignty.’” See Doc. No. 92, p.
23. However, this argument is rejected for the same reasons articulated by Judge Jeffrey Brown in
the case of Texas v. United States Env't Prot. Agency, No. 3:23-cv-17, 2023 WL 2574591 (S.D. Tex.
Mar. 19, 2023). As noted by Judge Brown:
The defendants have challenged the States’ and Associations’ standing. Because the
court has determined that the States have standing, it need not determine whether the
Associations do. See Laroe Ests., Inc., 584 U.S. 439. The defendants first argue the
States lack standing because ‘federal regulation of water or land for the purpose of
pollution control is not a cognizable harm to state sovereignty.’ Dkt. 40 at 28 (citing
Hodel v. Va. Surface Mining & Reclamation Ass’n., 452 U.S. 264, 284-93 (1981)).
But Hodel does not support the defendants’ broad contention. The Hodel Court
considered Tenth Amendment limits on constitutional power to preempt or displace
state regulation of private activities affecting interstate commerce. Id. at 288-90.
Moreover, Hodel is premised on the fact that the challenged regulation did not
regulate States as States.” Id. at 286-89, 293. Because the States challenge the Rule
as violation their quasi-sovereign interest in regulating the land and water within
their borders, Hodel is inapplicable.
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Texas, 2023 WL 2574591, at *5. The federal district court in Texas concluded that “the States have
constitutional standing.” Id. at *6. The Court is of the opinion the States in this litigation also have
Article III standing.
The Clean Water Act clearly contemplates a state and federal enforcement scheme. States
must establish water quality standards for “waters of the United States” within their borders, subject
to EPA approval. 33 U.S.C. §§ 1313(a) and 1342. States administer the National Pollution
Discharge Elimination System. The intent of the Clean Water Act is not to impede state’s rights and
responsibilities in governing pollution, land use, and water use. 33 U.S.C. § 1251(b).
The numerous declarations filed in this case by state officials outline in detail the specific
costs of state compliance with the EPA’s new 2023 Rule, as well as the significant infringement on
state sovereignty that confers standing on the named plaintiffs. See Doc. Nos. 44-2 through 44-11.
The 2023 Rule does cause injury to States because they are the direct object of its requirements.
And the States are also landowners with direct obligations under the Clean Water Act. There is not
a mere possibility the new regulations will impact the States - it is a given. The irreparable harm
to the states that occurs with the implementation of the new 2023 Rule is clear and undisputed, and
is outlined in more detail in this Order at pages 29-41. More important, the 2023 Rule arguably
asserts jurisdiction over interstate waters not covered by the Clean Water Act as well as intrastate
waters that may have some “significant nexus” to non-jurisdictional waters. See Doc. Nos. 44-2,
¶¶ 10-11; 44-3, ¶¶ 3 and 5; 44-6, ¶ 3; 44-7, ¶ 7-8; 44-9, ¶ 7; 44-10, ¶ 14, and 44-11, ¶ 7.
These declarations reveal the new stringent compliance requirements of the Rule (and
associated costs) will result in the significant expenditure of additional state funds. This also confers
standing on the impacted states under the current state of the law in the Eighth Circuit. See City of
Kennett, Missouri v. Env’t Prot. Agency, 887 F.3d 424, 431 (8th Cir. 2018).
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The Court concludes the coalition of 24 States involved in this dispute clearly meet the
constitutional minimum for standing. To hold otherwise would leave them with little recourse.1
B. PRELIMINARY INJUNCTION
This Court applies the well-known four-factor inquiry to determine whether a preliminary
injunction should issue. Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109, 112-13 (8th Cir. 1981).
Commonly referred to as the Dataphase factors, the Court must weigh (1) the threat of irreparable
harm to the movant; (2) the balance of harms; (3) the movant’s likelihood of success on the merits;
and (4) the public interest. Id.
It is well-established that the movant has the burden of establishing the necessity of a
preliminary injunction. Baker Elec. Coop., Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir. 1994). All
factors must be weighed to determine whether a preliminary injunction should issue. Lankford v.
Sherman, 451 F.3d 496 (8th Cir. 2006). “While no single factor is determinative, the probability
of success factor is the most significant.” Home Instead, Inc. v. Florance, 721 F.3d 494 (8th Cir.
2013) (internal citations omitted). “A preliminary injunction is an extraordinary remedy never
awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008).
1. LIKELIHOOD OF SUCCESS ON THE MERITS
The Court initially considers the likelihood of success on the merits because if the movant
fails to establish a likelihood of success, the quest for a preliminary injunction fails. The likelihood
1The undersigned has reviewed the recent case of Kentucky v. Env’t Prot. Agency, No. 3:23-CV-00007-GFVT, 2023
WL 2733383 (E.D. Ky. Mar. 31, 2023). In that case, the federal district court denied without prejudice the State’s
motion for a preliminary injunction based on lack of standing. The Kentucky case is easily distinguishable from the
facts of this case.
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of success on the merits is the most important factor in the analysis. Brady v. Nat’l Football League,
640 F.3d 785, 789 (8th Cir. 2011). This factor requires that the States show a “fair chance of
prevailing,” Planned Parenthood Minnesota, N. Dakota, S. Dakota, v. Rounds, 530 F.3d 724, 732
(8th Cir. 2008) – that is no “greater than fifty percent” likelihood, PCTV Gold, Inc. v. SpeedNet,
LLC., 508 F.3d 1137, 1143 (8th Cir. 2007) – on “even one [of their] claims,” Weather Modifcation
LLC v. Brackin, No. 3:20-CV-73, 2020 WL 4606843, at 3 (D.N.D. June 12, 2020).
The EPA contends their latest interpretation of WOTUS is entitled to deference. This
inquiry invokes the two-step framework in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467
U.S. 837 (1984). The Texas court’s recent decision in Texas v. United States Env't Prot. Agency,
No. 3:23-cv-17, 2023 WL 2574591 (S.D. Tex. Mar. 19, 2023) is a thoughtful and well-reasoned
decision. See Doc. No. 104-1. The federal district court in Texas concluded Chevron does not
apply. This Court agrees. Although Chevron is designed to recognize the competence of executive
agencies and to defer to their expertise where appropriate, it does not apply when the statutory
language of the law at issue (the 2023 Rule) implicates criminal penalties as it does in this case.
There are significant criminal penalties that may apply under the 2023 Rule – fines, imprisonment,
or both – even for negligent violations of the rule. See 33. U.S.C. § 1319(c)(1). The principle
derives from the established rule of lenity, which requires that ambiguities be resolved against the
application of criminal penalties. See United States v. Parker, 762 F.3d 801, 806 (8th Cir. 2014).
The federal district court in Texas went on to hold that the states (Texas and Idaho) are likely
to succeed on the merits because “at least two aspects” of the 2023 Rule “are unlikely to withstand
judicial review.” Texas, 2023 WL 2574591 at *10. One of the many problems recognized by the
Texas court is the 2023 Rule’s categorical inclusion and extension to all interstate waters. Id. at *9-
10. The Texas court said:
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Under the 2023 Rule, the Agencies may regulate ‘interstate waters, regardless of
their navigability.’ Id. at 3072. Additionally, because interstate waters are ‘paragraph
(a)(1) waters,’ the Agencies do not have to rely on either the significant-nexus or
relatively-permanent test to apply the Act to interstate waters–jurisdiction is
automatic. Id. at 3066-67 (‘If a waterbody is determined to be a paragraph (a)(1)
water, then it is jurisdictional with no need for further evaluation.’)…The Agency’s
interpretation of the Act to include all interstate waters irrespective of any limiting
principle raises serious federalism questions; accordingly, the court will prefer any
‘otherwise acceptable construction’ not ‘plainly contrary’ to Congress’s intent. See
SWANCC, 531 U.S. at 173 (quotation omitted). Certainly, the court agrees with the
defendants that federally regulating some interstate waters may be necessary to
carry out Congress’s intent to protect the nation’s waters, Dkt. 39 at 27, but the court
is not convinced that the Act’s text supports unrestrained federal jurisdiction over all
interstate waters.
Id. at *9.
The district court in Texas concluded the 2023 Rule reads “navigability out of the Act,” and
this Court agrees with that analysis Id. More important, the Texas court said the EPA’s
interpretation lacks any limiting principle; raises serious federalism questions; and “poses due-
process concerns.” Id. Contrary to the EPA’s position, “the plain text of 33 U.S.C. § 1313(a)(1)
indicates that Congress anticipated that federal jurisdiction over at least some interstate waters
would not be consistent with the Act and its ‘purpose’ to preserve the ‘primary state responsibility
for ordinary land-use decisions.’” Id. at 9.
The other major problem identified by the federal district court in Texas was the material
differences between the version of the “significant-nexus” test under the 2023 Rule and the standard
articulated by Justice Kennedy in Rapanos. Texas, 2023 WL 2574591 at 7-8. Judge Brown in
Texas wisely noted the following problems in that regards:
The 2023 Rule trades the interstate-commerce test for two new tests, the significant-
nexus and relatively-permanent tests, which the Agencies—under the Rule—would
use to decide whether certain waters fall within the Act's jurisdiction. Under the
interstate-commerce test, the Agencies must consider ‘whether the use, degradation,
or destruction of ... water could affect interstate or foreign commerce’ before
claiming jurisdiction to regulate it under the Act. See 88 Fed. Reg. at 3029. The
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Rule's significant-nexus test instead asks whether waters ‘either alone or in
combination with similarly situated waters in the region, significantly affect the
chemical, physical, or biological integrity of traditional navigable waters, the
territorial seas, or interstate waters.’ Id. at 3006. And the Rule's relatively-permanent
test would empower the Agencies to regulate ‘relatively permanent, standing or
continuously flowing waters connected to paragraph (a)(1) waters, and waters with
a continuous surface connection to such relatively permanent waters or to traditional
navigable waters, the territorial seas, or interstate waters.’ Id.
. . .
The 2023 Rule's significant-nexus standard identifies ‘waters that, either alone or in
combination with similarly situated waters in the region, significantly affect the
chemical, physical, or biological integrity of traditional navigable waters, the
territorial seas, or interstate waters.’ 88 Fed. Reg. at 3006 (emphasis added).
Justice Kennedy's test would not extend federal jurisdiction to nontraditional waters
unless the water ‘either alone or in combination with similarly situated lands in the
region, significantly affects the chemical, physical, and biological integrity of other
covered waters more readily understood as ‘navigable.’’ Rapanos, 547 U.S. at
780, (Kennedy, J., concurring) (emphasis added).
The Agencies’ construction of the significant-nexus test ebbs beyond the already
uncertain boundaries Justice Kennedy established for it. Specifically, by extending
the significant-nexus test to ‘interstate waters,’ and not just to those ‘waters ...
understood as ‘navigable,’ ‘the Rule disregards the Act's ‘central requirement’—'the
word ‘navigable.’’ Id. at 778. As explained more thoroughly below, linking the
significant-nexus test to ‘interstate waters’ greatly expands its breadth beyond what
Justice Kennedy envisioned; the Rule—unlike his suggested test—defines ‘interstate
waters’ as jurisdictional regardless of navigability. 88 Fed. Reg. at 3072.
Even if the court assumes that Justice Kennedy's significant-nexus test appropriately
measures the Agencies’ jurisdiction under the Act, the Rule does not accurately
reflect his test. Indeed, the Rule's substantial variance from Justice Kennedy's test
compels the court to question its legitimacy—and persuades the court that the
plaintiffs will likely succeed on the merits.
The Court finds that the new 2023 Rule is neither understandable nor “intelligible,” and its
boundaries are unlimited. Beyond the many problems with the new 2023 Rule recognized by the
considered decision of the federal district court in Texas, this Court is of the opinion the 2023 Rule
raises a litany of other statutory and constitutional concerns.
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(a) The EPA Has Arguably Acted Beyond Statutory Authority
Congress prescribed that the EPA’s authority under the Clean Water Act to extend to
“navigable waters,” which is defined as “the waters of the United States.” 33 U.S.C. § 1362(7).
Congress used the word “navigable” to show “what [it] had in mind as its authority for enacting the
CWA: its traditional jurisdiction over waters that were or had been navigable in fact or which could
reasonably be so made.” Solid Waste Agency of N. Cook Cnty. v. United States Army Corps of
Engineers, 531 U.S. 159, 172 (2001) (“SWANCC”). In other words, waters that bear a “speculative
or insubstantial” connection with other waters falling within Congress’s traditional jurisdiction do
not constitute “waters of the United States.” Rapanos, 547 U.S. at 780 (Kennedy, J., concurring).
And waters that may “eventually flow into traditional navigable waters” do not necessarily qualify.
Id. at 778. Congress obviously did not intend for the EPA to claim “jurisdiction over nonnavigable,
isolated, intrastate waters” or waters that are devoid of a federal interest. SWANCC, 531 U.S. at
171.
The category of covered waters under the 2023 Rule is problematic. The first category under
the new Rule (at 88 Fed. Reg. 3005-06) are traditional navigable waters, territorial seas, and
interstate waters. The EPA has now taken the position that “interstate waters” includes all such
waters—even those that are not “connected to navigable waters” in any manner. Id. at 3074. There
are serious questions whether this is a permissible construction of the Clean Water Act as the Rule
essentially reads non-navigability out of the Act. And does the Clean Water Act support making
every wetland, stream, tributary or other water traversing a border subject to federal jurisdiction?
The treatment of impoundments presents conflicts between the new 2023 Rule and the text
of the Clean Water Act. The EPA will assert jurisdiction over impounded waters that were
“jurisdictional under [the new 2023 Rule]’s definition at the time the impoundment was created.”
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88 Fed. Reg. at 3075. As a result, even waters that have “no outlet or hydrologic connection to the
tributary network” may now be considered jurisdictional impoundments if some hydro-history can
show the waters previously would have qualified as WOTUS under the new 2023 Rule. Id. at 3077-
78. The Court is skeptical that Congress intended the Clean Water Act to empower the EPA to
regulate impounded waters merely because they were once “waters of the United States.” The EPA
states that improvements typically do have a hydrologic connection to a navigable water, but that
is not always the case.
The treatment of tributaries under the new 2023 Rule is suspect. The rule’s definition of a
“tributary” is extremely broad; a watercourse can qualify as a tributary so long as it makes its way,
“directly or indirectly,” to a traditional navigable water, territorial sea, or interstate water by any wet
or dry waterway, such as wetlands or ditches. 88 Fed. Reg. at 3080. Thus, any water that eventually
gets to a traditional navigable water, territorial sea, or interstate water may qualify. Id. Even
tributaries that “may run dry [for] years” can be treated as relatively permanent. Id. at 3085.
Ephemeral and intermittent streams can also become “waters of the United States.” Judge Ralph
Erickson of this Court enjoined the 2015 Rule for doing exactly the same thing. See North Dakota,
127 F. Supp. 3d at 1056 (noting the “breadth of the definition of a tributary … allows for regulation
of any area that has a trace amount of water so long as the physical indicators of a bed and banks
and an ordinary high-water mark exist”).
The Court notes that the treatment of wetlands is plagued with uncertainty. “Adjacent”
wetlands are covered if they bear a “continuous surface connection” with “relatively permanent”
impoundments or tributaries. 88 Fed. Reg. at 3095. The EPA has redefined “continuous surface
connection” to cover waters that lack even minimal “constant hydrologic connection.” Id. The EPA
now lumps together waters “in the region” that are “reasonably close” and may have a “material”
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effect on jurisdictional impoundments or tributaries. Id. at 3089-90. And lands that may arguably
be damp on occasion can combine with other only occasionally wet areas in “neighboring” vicinities
to create some nominal effect on ordinary jurisdictional waters. In other words, even “remote”
wetlands—which the Supreme Court has said should not be covered—would arguably be covered
under the 2023 Rule. See North Dakota, 127 F. Supp. 3d at 1057.
The Supreme Court has said that the definitional use of the phrase “waters of the United
States” does not provide a basis for reading the term “navigable waters” out of the statute. Solid
Waste Agency of N. Cook Cnty., 531 U.S. at 172. Under the new definition, “similarly situated”
waters “in the region” can be used to establish a “material influence” on other covered waters, and
even isolated prairie potholes may become “navigable waters” under the Clean Water Act. Even
more confusing is the idea that because “subsurface connections” can provide a “substantial nexus,”
a landowner may not know they have “waters of the United States” simply by looking at their
property. 88 Fed. Reg. at 3093.
Under the new 2023 Rule, the EPA defines the “relatively permanent standard”test of the
plurality opinion in Rapanos to mean “waters that are relatively permanent, standing or continuously
flowing waters” connected to paragraph (a)(1) traditional navigable waters, interstate waters, and
the territorial seas, “and waters with a continuous surface connection to such relatively permanent
waters or to paragraph (a)(1) waters.” 88 Fed. Reg. 3038. This definition is far from
understandable, and the 2023 Rule does not define “relatively permanent.”
The EPA defines the “significant nexus standard” test of Justice Kennedy’s concurrence in
Rapanos as “waters that, either alone or in combination with similarly situated waters in the region,
significantly affect the chemical, physical, or biological integrity of traditional navigable waters, the
territorial seas, or interstate waters.” 88 Fed. Reg. 3006. However, the 2023 Rule does not define
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what it means to be “similarly situated,” nor does it define what constitutes “in the region,” or what
is the standard to measure a “significant affect,” or what “chemical, physical, or biological integrity”
means.
The 2023 Rule does go on to define “significantly affect” as a “material influence on the
chemical, physical, or biological integrity” of a paragraph (a)(1) water. 88 Fed. Reg. 3143.
However, the EPA then looks to vague factors such as “distance from a paragraph (a)(1) water,”
“hydrologic factors,” the waters that have been determined to be “similarly situated,” and
“climatological variables.” Id. These murky definitions are unintelligible and provide little
guidance to parties impacted by the regulations.
Finally, and even more troublesome, is the fact the 2023 Rule allows for case-specific
assertions of jurisdiction by the EPA over a broad category of “waters.” 88 Fed. Reg. 3024. The
“paragraph (a)(5) waters” category encompasses intrastate, non-navigable features that were
previously considered to be “isolated” and not within the Clean Water Act’s jurisdiction. See
SWANCC, 531 U.S. at 167, 171.
The EPA’s 2023 Rule will require States, landowners, and countless other effected parties
to undertake expensive compliance efforts when their property may implicate navigable waters in
ill-defined ways. The phrase “waters of the United States”, a term that has been hopelessly defined
for decades, remains even more so under the 2023 Rule. It is doubtful Congress endorsed the
current efforts to expand the limits of the Clean Water Act. The joint resolution passed by Congress
on March 29, 2023, was expressly designed to nullify the EPA’s new 2023 Rule. To delegate its
power to another branch Congress must, at a minimum, “lay down by legislative act an intelligible
principle to which the person or body authorized to exercise the delegated authority is directed to
conform.” Mistretta v. United States, 488 U.S. 361, 372 (1989). There is little that is intelligible
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about the 2023 Rule and the broad scope of its jurisdiction. The EPA’s interpretation of the 2023
Rule does not provide any clarity nor equate with an intelligible principle to which the States can
easily conform. And the Rule does not provide fair notice to the States as to what will be considered
“waters of the United States.”
(b) The EPA’s Actions Are Arguably Arbitrary and Capricious
An agency action is unlawful if it is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The States have identified the
following major concerns which they contend support the grant of injunctive relief.
First, the States argue the 2023 Rule offers no clear guidance on how it should be
implemented. To survive an arbitrary-and-capricious review, an agency must offer
“understandable” findings and rationales, not “unclear or contradictory” ones. Associated Gas
Distribs. v. FERC, 893 F.2d 349, 361 (D.C. Cir. 1989). In other words, “ambiguity and lack of
clarity in [an agency’s] official position” can justify remand. FTC v. Atl. Richfield Co., 567 F.2d
96, 100 (D.C. Cir. 1977). For example, the multi-step “guidance for landowners” that the 2023 Rule
provides for landowners who question whether they need a Clean Water Act permit, is of little
assistance. The guide concludes with a final suggestion to contact the EPA to confirm jurisdiction
and permitting requirements. 88 Fed. Reg. at 3130-35. The Plaintiffs’ argue such vague guidance
leaves the States and landowners guessing whether their millions of acres fall within the new
regulatory scheme.
Second, the States argue the 2023 Rule arbitrarily and capriciously mishandles its
cost-benefit analysis. The EPA advised the 2023 Rule would lead to only “de minimis costs,” while
imposing no “new costs or other requirements [as to] states,” 88 Fed. Reg. at 3007, 3049, and 3141.
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The EPA apparently reached this conclusion because it thought the 2023 Rule was consistent with
the pre-2015 enforcement regime. However, the 2023 Rule and the EPA’s pre-2015 practice are at
odds in several key ways.
The States contend the EPA did not comply with important procedural requirements. The
APA requires administrative rules to be procedurally sound. See 5 U.S.C. § 706(2)(D) (a final
agency action shall be held “unlawful and set aside” if found to be “without observance of procedure
required by law”). The Regulatory Flexibility Act “requires an agency undergoing informal
rulemaking to prepare and publish a regulatory flexibility analysis that details, among other things,
the rule’s ‘significant economic impact on small entities’ and the steps the agency has taken to
minimize that impact.” Northport Health Servs. of Ark., LLC v. U.S. Dep’t of Health & Hum.
Servs., 14 F.4th 856, 876 (8th Cir. 2021) (quoting 5 U.S.C. § 604). An agency can only skip that
analysis if the “head of the agency certifies that the rule will not ... have a significant impact on a
substantial number of small entities.” Id. at 876. A “cursory explanation” for this decision to certify
is not enough. Id. at 877. The EPA summarily concluded the 2023 Rule would not significantly
impact small entities. 88 Fed. Reg. at 3140. From the declarations filed in this case by state
officials, it appears the 2023 Rule directly affects many States/landowners who now find themselves
potentially subject to federal jurisdiction and permitting requirements. These landowners will need
to undertake expensive assessments or forego their activities.
It is also unclear whether the EPA provided full notice and comment on all relevant aspects
of the new 2023 Rule. “To satisfy the APA’s notice requirement, the [notice of proposed rule
making] and the final rule need not be identical[;]” however, a final rule must be “a ‘logical
outgrowth’ of its notice.” CSX Transp., Inc. v. Surface Transp. Bd., 584 F.3d 1076, 1079 (D.C. Cir.
2009). A previously unannounced and more expansive definition first offered in a final rule can run
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afoul of the notice requirement. See, e.g., North Dakota, 127 F. Supp. 3d at 1058 (finding that
definition of “neighboring” in 2015 WOTUS rule was not a logical outgrowth of the proposed rule);
see also Texas v. EPA, 389 F. Supp. 3d 497, 504-06 (S.D. Tex. 2019) (detailing the 2015 Rule’s
violations of notice-and comment requirements). The States argue that several new elements that
are not “logical outgrowths” of the proposed rule appeared for the first time in the 2023 Rule. The
new terms and definitions include the use the idea of a “wetland mosaic” to explain how the EPA
will identify adjacent wetlands, the redefinition of “significant nexus” to mean any “material
influence,” and defining tributaries in with similar tributaries in their same “catchment.” These
terms and definitions are found in the 2023 Rule but were not included in the proposed rule, raising
serious concerns about whether proper procedures were followed.
(c) Constitutional Concerns
The APA will not permit a rule to stand if it is “contrary to constitutional right, power,
privilege, or immunity.” 5 U.S.C. § 706(2)(B). The States contend the 2023 Rule conflicts with at
least three different constitutional limitations. See Doc. No. 44-1, pp. 19-21.
Specifically, the States outline the following constitutional concerns:
1. The Final Rule impermissibly reaches land and waters without requiring
that they bear a direct connection to navigable waters or otherwise bear some
substantial relationship with (or otherwise substantially affect) interstate commerce.
In fact, the Final Rule removes portions of the 1986 Regulations that spoke directly
to interstate commerce, replacing that category with the catch-all “other waters”
category that does not carry with it any meaningful connection with commerce. It
did so even though “Clean Water Act jurisdiction is not co-extensive with Congress’
Commerce Clause authority.” Am. Petroleum Inst. v. Johnson, 541 F. Supp. 2d 165,
183 (D.D.C. 2008). And it extends the Agencies’ reach to nonnavigable, isolated,
intrastate waters, even though the Supreme Court has warned that regulating such
places raises serious Commerce Clause concerns. SWANCC, 531 U.S. at 173.
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2. The Tenth Amendment presents yet another constitutional obstacle for the
Final Rule. That amendment says that “[t]he powers not delegated to the United
States by the Constitution ...are reserved to the States respectively, or the people.”
U.S. CONST. amend. X. In applying this prescription, a court should ask whether a
federal act “invades the province of state sovereignty.” New York v. United States,
505 U.S. 144, 155 (1992). The authority to regulate intrastate land use and water
resources is one such province. See, e.g., SWANCC, 531 U.S. at 174 (“[R]egulation
of land use [is] a function traditionally performed by local governments.”). As
should be clear by now, the Final Rule strikes at the heart of the States’ reserved
power over land and water. Under the Final Rule, States become secondary
regulatory players as to a variety of purely intrastate waters with only the most
tenuous connections to waters imbued with some national interest. Federal standards
will now become the de facto rule for environmental regulation. Those standards will
in turn dictate how States and their residents employ their own property, making land
and water development a de facto federal issue, too.
3. The Final Rule faces a third constitutional strike against it: the Fifth
Amendment’s Due Process Clause. The Due Process Clause dooms certain laws that
are unduly vague. And a law crosses that threshold when it “either forbids or requires
the doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application. Connally v. Gen.
Const. Co, 269 U.S. 385, 391 (1926). The Final Rule is rife with administrative
jargon that would confuse even an exceptionally intelligent reader: “adjacent,”
“certain times of year,” “interstate waters,” “impoundments,” “material influence,”
“mosaic,” “relatively permanent,” “seasonally,” “significantly affect,” “significant
nexus,” “similarly situated,” and “tributaries” are but a few examples. These terms
are then paired with fuzzy we-know-it-when-we-see-it standards—often implicating
multi-factor tests—that make it next to impossible for the typical landowner to know
what to do. And if the landowner guesses wrong, the consequences are dire: crushing
civil penalties and potential criminal punishment for individuals who discharge or
dredge in “waters of the United States.” 33 U.S.C. § 1319; Hawkes, 578 U.S. at 600.
Circumstances like these render the Final Rule void for vagueness. See Paul J.
Larkin, The Clean Water Act and the Void-for-Vagueness Doctrine, 20 GEO. J.L. &
PUB. POL’Y 639, 659-62 (2022).
See Doc. No. 44-1, pp. 19-21.
This Court agrees there are serious constitutional concerns triggered by the implementation
of the EPA’s new 2023 Rule. The categorical extension of federal jurisdiction over all interstate
waters, regardless of navigability is of significant constitutional import. The 2023 Rule’s
“significant-nexus” standard poses important due process concerns which may not be clarified until
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the United States Supreme Court issues a decision in Sackett this term. As Judge Brown noted in
Texas, “the Rule’s proposed significant-nexus test, with its numerous factors and malleable
application seems to muddy the waters even more.” See Texas, 2023 WL 2574591.
The EPA’s 2023 Rule seems to ignore the “navigable waters” requirement under the Clean
Water Act. The Rule impermissibly covers “all interstate waters, including “wetlands” and “all
rivers, lakes, and other waters that flow across, or form a part of, State boundaries.” 88 Fed. Reg.
at 3072. As a result, water or wetlands are considered to be “waters of the United States” if it crosses
a state line, no matter how small or isolated and regardless of whether the water is “navigable.”
Other federal courts have recognized that the EPA’s assertion of jurisdiction over all
interstate waters is not a permissible construction of the Clean Water Act because they assert
jurisdiction over waters that are not navigable-in-fact, or have no significant nexus to other
navigable-in-fact waters. Georgia v. Wheeler, 418 F. Supp. 3d 1336, 1359 (S.D. Ga. 2019). The
Georgia court also recognized that an exercise of such jurisdiction brings into play tributaries no
matter how remote they are from traditional navigable water. Id.
The EPA’s interpretation of the 2023 Rule to include all interstate waters irrespective of any
limiting principle raises serious federalism questions and concerns. Simply stated, does the 2023
Rule interpreting “Waters of the United States” support unrestrained federal jurisdiction over all
interstate waters? This Court recognizes that the exercise of Commerce Clause authority under the
Clean Water Act has some limits, and the regulations must in some manner be tied to navigability
to withstand a constitutional challenge. The exercise of jurisdiction over all rivers, lakes, and other
waters that flow across state boundaries, no matter how small or isolated and regardless of
navigability is constitutionally troublesome. There is nothing in the text of the Clean Water Act that
supports making every wetland, stream, or other water crossing a border subject to federal
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jurisdiction. The definitions of WOTUS involve the regulation of a significant portion of American
land mass, water, and economy. However, a grant of general authority to the EPA is not without
limits, and there exist serious questions whether Congress intended to allow the EPA to make such
major policy decisions as are codified in the 2023 Rule through the rulemaking process. As the
Supreme Court said in West Virginia v. EPA, 142 S.Ct. 2587, 2608-09 (2022), federal agencies are
not permitted to exercise regulatory power “over a significant portion of the American economy”
or “make a radical or fundamental change to a statutory scheme” through rulemaking without clear
authorization by Congress. Id. Instead, the Court presumes that “Congress intends to make major
policy decisions itself, and not leave those decisions to agencies.” Id. at 2609.
2. IRREPARABLE HARM
The Plaintiffs contend that with respect to the Dataphase factor of irreparable harm, the loss
of the State’s sovereignty is an irreparable harm which rises to the need for preliminary equitable
relief. See Doc. No. 44-1, pp. 21-27.
The argument of the coalition of 24 States are summarized as follows:
First, “[l]oss of sovereignty is an irreparable harm,” Georgia v. Pruitt, 326
F. Supp. 3d 1356, 1367 (S.D. Ga. 2018)—particularly where the States are deprived
“of those interests without first having a full and fair opportunity to be heard on the
merits,” Kansas v. United States, 249 F.3d 1213, 1227 (10th Cir. 2001). See also
Akiachak Native Cmty. v. Jewell, 995 F. Supp. 2d 7, 17 (D.D.C. 2014) (recognizing
loss of state sovereignty as an irreparable harm). The Final Rule imposes just this
sort of injury—recall the Tenth Amendment and federalism canon considerations.
By improperly expanding federal jurisdiction to substantial numbers of intrastate
waters, the Final Rule saps the States of their “traditional and primary power over
land and water use.” North Dakota, 127 F. Supp. 3d at 1059 (quoting SWANCC, 531
U.S. at 174). This power is “obvious, indisputable,” and “omnipresent.” Hudson
Cnty. Water Co. v. McCarter, 209 U.S. 349, 356 (1908). Each of the States manages
and protects the lands and waters within their borders, and many own some of these
intrastate resources directly. See ECF 1, ¶¶ 20-53. But the Final Rule limits the
States’ exercise of this “essential attribute of sovereignty.” Tarrant Reg’l Water
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Dist. v. Herrmann, 569 U.S. 614, 631 (2013). See, e.g., Exs. A, ¶¶ 3-4; F, ¶¶ 11-13;
G, ¶¶ 4-6; H, ¶¶ 12-14; and I, ¶¶ 8-14. That loss is irrecoverable.
Second, expanded federal jurisdiction swells the States’ obligations under
several CWA programs. When it comes to water quality standards, for instance,
States must identify newly jurisdictional waters within their borders, assess their
uses, and determine if they meet an already existing standard or establish a Total
Maximum Daily Load if they do not. See ECF 1, ¶¶ 55-56. The States must also
evaluate, issue, and enforce new National Pollution Discharge Elimination System
permits for businesses and homeowners before they can discharge pollutants into a
newly covered water. See ECF 1, ¶ 58. Both of these time- and resource-intensive
endeavors will become heavy burdens under the Final Rule. See, e.g., Exs. A, ¶¶
5-7, 13, 15, 17; B, ¶¶ 2-3, 5 (burden from projected increase of permits); C, ¶¶ 2-7;
D, ¶¶ 3-6; E, ¶¶ 3, 5; G, ¶¶ 6-10 (resources that must now be spent to decipher Final
Rule’s “ambiguous standards”); H, ¶¶ 7, 15; and J, ¶¶ 3-6.
Courts have looked to similar costs when finding irreparable harm before.
See Georgia, 326 F. Supp. 3d at 1367; North Dakota, 127 F. Supp. 3d at 1059. If
anything, these costs are worse here because of the added burdens from assessing
what the Final Rule’s opaque case-by-case determination approach covers in the first
place. See, e.g., Exs. A, ¶¶ 6, 9-12 (“extremely heavy burden” from rule’s “woefully
inadequate” consideration of “Alaska-specific conditions”); C, ¶¶ 6-13 (significant
nexus factors “seem ... subjective,” introduce “greater level of uncertainty”); E, ¶¶
3, 5; F, ¶¶ 9, 11; G, ¶¶ 6-10; and J, ¶¶ 7. The States and their environmental agencies
have already tallied significant costs parsing the two rules that came before; the
regulatory whiplash from three rules in eight years makes the harm that much more
severe. See, e.g., Exs. A, ¶ 8; G, ¶¶ 11-13; H, ¶ 7 (“considerable burden” from
“[k]eeping current with the continually changing federal WOTUS rules”); I, ¶¶
15-16; and J, ¶ 8. And add to that the wasted effort of trying to understand and
comply with a regulatory regime that may well be set aside—under either existing
precedent or the Supreme Court’s soon-anticipated Sackett decision. Depending on
Sackett’s reach, for instance, the Agencies might ask for voluntary remand to adjust
the regulatory landscape again. All this means that even if the Agencies’ (bordering
disingenuous) insistence were true that the Final Rule will have no “substantial direct
effect[] on the States” or “on the distribution of power and responsibilities” between
the States and the Agencies, 88 Fed. Reg. at 3140-41, the States will still face
significant costs learning and applying a new framework that may ultimately be for
nothing. See, e.g., Exs. C, ¶¶ 13 (“wasteful ... time and effort in applying this Rule
... until its fate is known”); D, ¶ 7; E, ¶ 4; F, ¶¶ 17-18; G, ¶¶ 11-13; H, ¶¶ 7, 16; I, ¶¶
15-16; and J, ¶ 8.
Worse yet, the States stand no chance to get these “undeniable ... monetary
losses” back. North Dakota, 127 F. Supp. 3d at 1059; see also Georgia, 326 F. Supp.
3d at 1367 (“no avenue exists to recoup those losses”). “[U]nrecoverable economic
loss” like this is a classic form of irreparable harm. Iowa Utils. Bd., 109 F.3d at 426;
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see also Bowen v. Massachusetts, 487 U.S. 879, 893 (1988) (sovereign immunity not
waived for APA damages actions).
Third, the Final Rule’s burdens and confusion stack on costs for projects and
development throughout the States. Some of these are taxpayer-funded, and new
jurisdictional assessments and permitting processes from the Final Rule’s expanded
reach will make them more expensive and slower to finish. See, e.g., Exs. A, ¶ 14;
C, ¶¶ 7-8, 11-12; E, ¶ 3 (projects suffered costs, delays); F, ¶¶ 6-10, 15-16 (project
“immediately threaten[ed]” because it “runs through the prairie pothole region” that
is “now potentially WOTUS”); G, ¶ 7; I, ¶¶ 10-14, 16 (massive harm to pipeline,
water supply, and dam projects). The same is true when the States are not directly
involved in a given project: Delay and budget increases will lead to lost tax revenue
from projects cancelled or delayed. See, e.g., Exs. A, ¶ 16 (“[t]his uncertainty
negatively affects our investment climate”); E, ¶ 4 (“potential to deter important
investment in the state”); and H, ¶¶ 7-11, 13, 17. All these costs are steep and
(unless the Court steps in first) irreparable.
See Doc. No. 44-1, pp. 21-24.
With respect to the compliance costs associated with the implementation of the 2023 Rule,
the Court finds the Plaintiffs have easily shown the 2023 Rule poses irreparable harm. Specifically,
the Plaintiffs have produced numerous declarations that outline in detail some of the specific costs
of complying with the new 2023 Rule. See Doc. Nos. 44-2, 44-3, 44-5, 44-6, 44-7, 44-8, 44-9, 44-
10, and 44-11.
For example, the Director of the Division of Water in the Alaska Department of
Environmental Conservation outlined the following impact on the state as a result of the EPA’s
treatment of wetlands:
11. The Final Rule’s consideration of Alaska-specific conditions is woefully
inadequate. Of particular concern to Alaska is the federal agencies’ treatment of
groups of wetlands that exist in close proximity to each other, but miles away from
any traditionally navigable waters. This ambiguity is particularly troublesome to
Alaska, which is home to over 174 million acres of wetlands. Alaska’s wetlands
comprise 43% of the state’s surface area and 63% of the nation’s wetlands.
Ascertaining the extent of federal jurisdiction over 174 million acres on a
case-by-case basis places an extremely heavy burden on my Division.
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12. Ascertaining the extent of the Final Rule is important for my Division to fulfill
its obligations to the public, who are subject to civil and criminal penalties if they do
not obtain a permit.
See Doc. No. 44-2, ¶¶ 11-12.
The General Manager of the Garrison Diversion Conservancy District in North Dakota
submitted a declaration that outlines, in part, the significant impact on North Dakota.
5. Congress enacted the Flood Control Act of 1944, which authorized construction
of the Garrison Dam as well as the GDU principal supply works, consisting of a
system of pumps and canals (GDU Project) to bring Missouri River water to eastern
North Dakota. 16 U.S.C. § 460d. In exchange for allowing the federal government
to flood 300,000 acres of rich, river valley lands within North Dakota, federal
legislation authorized the State of North Dakota (State) to develop water supplies
stored behind the Garrison Dam for the purposes identified in paragraph 2, above.
6. In 2011, Garrison Diversion, with SWC input, began planning a non-federal
project to bring water to the Red River Valley (State RRV Project); one that would
not trigger federal Clean Water Act (CWA) jurisdiction and avoid delay due to
federal agency action or litigation. The State RRV Project preliminary design is
complete, with final design being completed as funding is available for constructed.
Construction started in 2021 and continues through today. The design intentionally
avoids any wetlands that are under federal CWA jurisdiction. The State RRV
Project was initially designed to fall under the Corps Nationwide Permit 12,
applicable to utility lines, so it would not trigger additional National Environmental
Policy Act (NEPA) review, litigation, and other obstacles. See, 33 C.F.R. pt. 330.
7. The Final Rule immediately threatens the State RRV Project since it imposes new
and expanded federal jurisdiction over land and water not previously subject to
federal regulation. This expanded federal jurisdiction under the Final Rule may
require the State RRV Project to obtain a CWA Section 404 permit and require
costly and time consuming NEPA compliance. The State RRV project pipeline runs
through the prairie pothole region. While prairie potholes have traditionally not been
subject to federal jurisdiction, the Final Rule broadens the jurisdiction of the
Agencies, assuming all prairie potholes are jurisdictional if relatively permanent or
have a significant nexus to certain water bodies, until proven otherwise.
8. Under the Final Rule, prairie potholes, which cover a significant portion of the
North Dakota landscape as shown in Figure 1, now are potentially WOTUS,
contingent upon a case-by-case determination. This “in, unless you’re demonstrated
to be out” conundrum places North Dakota and Garrison Diversion in a position of
needing to commission an extensive jurisdictional study for many projects
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commenced in the prairie pothole region that previously would not have been
jurisdictional. 88 Fed. Reg. 3,097 (Jan. 18, 2023) (to be codified at 33 C.F.R. pt. 328
and 40 C.F.R. pt. 120).
9. The Final Rule creates a case-by-case jurisdictional determination for waters
within the 100-year floodplain and waters within 4,000 feet of the ordinary high
water mark (OHWM) of a tributary. Federal Emergency Managements Agency has
only delineated the 100-year floodplain around major metropolitan areas. The
OHWM has not been surveyed along the majority of navigable waters, which are
only a small fraction of the waters covered by the Final Rule. As such, Garrison
Diversion needs to affirmatively study jurisdiction in detail to determine the
application of the federal permitting process in connection with the State RRV
Project. 88 Fed. Reg. 3,080 (Jan. 18, 2023) (to be codified at 33 C.F.R. pt. 328 and
40 C.F.R. pt. 120).
10. The Final Rule represents an immediate and significant change to the status quo
for water project development in North Dakota. If the Final Rule takes effect on
March 20, 2023, Garrison Diversion’s substantial investment, development plans,
and efforts to date to bring water to eastern North Dakota will be threatened.
Significant adverse impacts could immediately result for the State RRV Project, with
$78 million spent to date on this $1.4 billion project, lost time, lost effort and, most
importantly, the loss of benefit from the completion and operation of this critical
project. Without this project, significant irreparable social and economic harm will
be occasioned upon the citizens in the event of a drought. Over 49 percent of North
Dakota’s residents live within the project’s water service territory, so it impacts a
significant amount of North Dakota's population. Planning for projects to minimize
these risks is underway and takes years to put in place. The Final Rule’s
implementation on March 20, 2023 impairs creates an obstacle to these efforts.
14. Failure to obtain proper permits for projects that operate in and around newly
jurisdictional Final Rule are subject to the federal enforcement provisions, which
include administrative penalties (up to $16,000 per violation with a total penalty
capped at $177,500), civil penalties (up to $37,500 per violation or per day), and
criminal penalties (creating liability of up to $1,000,000 and 15 years of prison for
knowing violations by organizations). CWA § 309(0(2) & (d) & (b); 33 U.S.C. §
1319(g)(2) & (d) & (b) as superseded in relevant part by 40 C.F.R. § 19.4
See Doc. No. 44-7, ¶¶ 5-10, 14.
The North Dakota Director of the Department of Environmental Quality noted the following
impacts on the North Dakota Department of Health-which supports a finding of irreperable harm
to the State, the agricultural economy, and North Dakota farmers and ranchers:
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6. The Department is concerned that the Final Rule will increase the federal
government’s jurisdiction over waters that have traditionally been under the sole
jurisdiction of the state. Under the Final Rule, once a water is determined to be
WOTUS, it is within federal authority and North Dakota’s regulation of that water
is subject to EPA's oversight. Any expansion of federal jurisdiction infringes on the
Department's enforcement authority and ability to exercise its discretion in managing
state water quality.
7. The Final Rule imposes significant burdens upon North Dakota by forcing it to
shift attention and resources to the federal scheme to the disadvantage of local,
state-based programs.
8. The Department will have to expend its limited resources to immediately
determine which waters were added to federal jurisdiction under the Final Rule so
that it can understand the impact on the Department's various water pollution control
programs. Determining the scope of the Final Rule is especially difficult in North
Dakota due to the many areas with intermittent moisture, particularly in the prairie
pothole region. For example, when determining if a prairie pothole is WOTUS, the
Department will need to consider whether the waterbody, together with any
otherwaters in an ill-defined "region," will have a "material" effect on an aspect of
a traditional navigable or interstate water.
9. Since the Department, with its staff of engineers and scientists, struggles to
understand what is considered WOTUS under the Final Rule, North Dakota
landowners will certainly have difficulty determining which waters are subject to
federal jurisdiction. The consequences of misapplying the Final Rule are serious for
these individuals, with substantial civil and criminal penalties under the CWA.
10. In addition, because of the expansion of federal jurisdiction, the Final Rule will
force the Department to expend additional resources for conducting CWA Section
401 certification reviews. Under the CWA’s certification program, the Department
must review the Corps’ Section 404 permit applications for the discharge of dredged
or fill materials into WOTUS, including wetlands, to determine whether the
discharge complies with North Dakota’s Water Quality Standards. Not only will the
Department have to complete additional CWA 401 certification reviews, but it will
also have to expend resources to determine which waters are WOTUS — and
therefore subject to CWA Section 401 — using the Final Rule's ambiguous
standards.
11. Keeping current with the continually changing federal WOTUS rules over the
past decade has created an extreme burden on the Department. It is likely that the
Department will need to again reevaluate the implications of the Final Rule when the
Supreme Court issues a key decision on the scope of WOTUS in the coming months.
See Sackett v. EPA, 8 F.4th 1075 (9th Cir. 2021), cert. granted in part, 142 S. Ct. 896
(Jan. 24, 2022) (No. 21-454). Every hour of staff time devoted to trying to make
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sense of the ever-changing federal regime is an hour that cannot be spent addressing
other pressing environmental issues in North Dakota.
See Doc. No. 44-8, ¶¶ 6-11.
The North Dakota Department of Agriculture has further shown how that state agency will
be significantly impacted by the 2023 Rule.
4. North Dakota has well over 26,000 farms and ranches, comprising nearly 39.3
million acres, or approximately 90 percent of the total land area in North Dakota.
North Dakota agriculture contributes considerably over 30 billion dollars in
economic activity annually to the state. As a prime exporter of agricultural products,
North Dakota is often cited as the “breadbasket of the world.” North Dakota is the
country’s 10th largest agricultural exporting state. North Dakota produces over 50
different commodities. North Dakota farmers lead the nation in the production of
more than a dozen important commodities, among them spring and durum wheat,
rye, food grains, assorted beans, barley, flaxseed, canola, honey, sunflowers, pulse
crops and more. Of North Dakota’s approximately 775,000 residents, only about
three percent are farmers and ranchers. Nonetheless, agriculture broadly supports
nearly 25 percent of the state’s workforce, which is higher than the national average
of 19 percent. Agriculture remains the leading industry in North Dakota.
5. Our mission statement at the Department is to “[s]erve, advocate, protect and
promote agriculture to benefit everyone.” In furtherance of that mission, we promote
agriculture to protect both the value and use of agricultural lands, protect agricultural
capacity and output, and promote rural economic development and agricultural
industries.
6. I have the personal knowledge and experience to understand how the U.S.
Environmental Protection Agency’s (EPA) and the U.S. Army Corps of Engineers’
(the Corps) final rule entitled “Revised Definition of ‘Waters of the United States’”
(Final Rule), 88 Fed. Reg. 3004 (Jan. 18, 2023) (to be codified at 33 C.F.R. pt. 328
and 40 C.F.R. pt. 120) that becomes binding on March 20, 2023, will affect the
Department and agriculture in North Dakota.
7. As Agriculture Commissioner, I am greatly concerned about the substantial
negative impact of the WOTUS Rule. The WOTUS Rule will unnecessarily
negatively impact and irreparably harm North Dakota, the Department, North Dakota
agriculture, and North Dakota farmers and ranchers. In my opinion, the Final Rule
would have the following adverse effects on the State of North Dakota, the
Department, North Dakota residents, and our agricultural industry:
a. North Dakota has many areas with intermittent moisture. This is
especially true in our prairie pothole region. With the broad expansion of the
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definition of “Waters of the United States” (WOTUS) in the Final Rule,
North Dakota landowners with any intermittent moisture on their property
will need to consider whether the waters, alone or together with other waters
in an ill-defined “region,” constitute WOTUS. Landowners who fail to
identify WOTUS could be subject to substantial civil and criminal penalties.
b. The uncertainty over which waters are WOTUS – together with the time
and expense of getting a federal permit – would cause a significant
reduction in the amount of land available in North Dakota for crop
production and grazing. The Final Rule apparently remains unclear by
design. The use of highly complex, very broad, and extremely vague
language apparently indicates an attempt to subject North Dakota landowners
to potential limitless regulatory jurisdiction. Due to this lack of clarity within
the Final Rule, North Dakota farmers and ranchers, as a practical matter, will
have to assume that all of North Dakota agricultural lands are under EPA
CWA jurisdiction. This would be highly detrimental to North Dakota’s
agricultural industry and rural communities, and ultimately, result in a loss
of agriculturally related and rural jobs, along with decreased agricultural
production throughout the entire state.
c. In addition, the Final Rule’s changes to longstanding agricultural
exclusions, such as the change in the meaning of prior converted cropland
(PCC), create additional regulatory uncertainty. The Final Rule significantly
narrows the application of the PCC exclusion by foregoing past practices
associated with determining when PCC has been abandoned or has changed
its use. Farmers will now have to worry if changing from one crop to another
on PCC will trigger a requirement for a wetlands permit. Farmers will have
to halt grazing in a pasture, plow that land, and plant a new crop just to
maintain the land’s PCC excluded status. This requirement could seriously
conflict with efforts to maintain soil health and retain carbon in the soil.
d. The Department will have to devote valuable staff time and resources to
reviewing the lengthy and confusing Final Rule so that it can provide advice
to North Dakota farmers and ranchers and ensure proper implementation of
its pesticide and fertilizer regulations. Keeping current with the continually
changing federal WOTUS rules over the past decade has imposed a
considerable burden on the Department (as well as North Dakota’s
agricultural industry). Moreover, the Department will need to again
reevaluate the implications of the Final Rule when the Supreme Court issues
a key decision on the scope of WOTUS in the coming months. See Sackett
v. EPA, 8 F.4th 1075 (9th Cir. 2021), cert. granted in part, 142 S. Ct. 896
(Jan. 24, 2022) (No. 21-454). Every hour of staff time devoted to trying to
make sense of the ever-changing federal WOTUS CWA regulatory regimen
is an hour that cannot be spent much more productively fulfilling the
Department’s mission.
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8. The EPA statement in the Final Rule that it currently intends to exempt “normal
farming and ranching practices” provides little comfort to North Dakota farmers and
ranchers. The Final Rule does not exclude agricultural practices from federal CWA
jurisdiction. Instead, the Final Rule first asserts complete expansive jurisdiction over
such practices, and then, as a discretionary act of grace, acts as if it is benevolently
exempting them.
9. Whenever the EPA gratuitously grants an exemption, the EPA can simply later
narrow, suspend, or revoke that exemption at any time for any reason. The EPA
proffers these exemptions as ex gratia. These exemptions remain merely EPA agency
guidance, have no force of law, and can be effortlessly tightened, deferred, or
negated at any time without notice thus providing no legal protection or certainty.
13. North Dakota’s agricultural industry will be significantly and negatively harmed
through lost agricultural production and increased regulatory and compliance costs
if the Final Rule is not stayed during the pendency of this litigation. Further, the
Final Rule’s overly broad and ambiguous definition of WOTUS will require North
Dakota’s agricultural industry to divert precious financial resources to expensive
lawyers, consultants, and engineers in order to comply with the Final Rule’s
requirements.
15. The Final Rule is overly complex, broad, and vague, and accordingly, fails to
place North Dakota regulated agriculture-related parties on adequate notice as to if
and when their conduct might or would violate the law. It makes it nearly impossible
for farmers and ranchers to know whether and when they may carry on their most
basic agricultural activities without applying for and obtaining an extremely
expensive federal permit, otherwise subjecting them to potentially drastic criminal
and civil penalties under the CWA. Unfortunately, obtaining any such a federal
permit is a highly expensive, lengthy, and uncertain process. It can take years and
cost thousands, and even tens of thousands, of dollars.
See Doc. No. 44-9, ¶¶ 4-9, 13, 15.
Of additional significance in assessing this Dataphase factor is the Declaration of North
Dakota’s Department of Water Resources, Andrea Travnicek. Ms. Travnicek explains the
irreparable harm associated with trying to understand and comply with the federal regulations and
jurisdictional questions related to the new 2023 Rule and the Clean Water Act.
5. In North Dakota, “[a]ll flowing streams and natural watercourses shall forever
remain the property of the state for mining, irrigating and manufacturing purposes.”
N.D. Const. art. XI, § 3; see N.D. Cent. Code § 61-01-01 (surface and ground waters
“belong to the public and are subject to appropriation for beneficial use”).
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6. “Waters of the state” is defined broadly for purposes of N.D. Cent. Code ch.
61-28 to include almost all waters above and below the ground surface. N.D. Cent.
Code § 61-28-02(15). It means “all waters within the jurisdiction of this state,
including all streams, lakes, ponds, impounding reservoirs, marshes, watercourses,
waterways, and all other bodies or accumulations of water on or under the surface
of the earth, natural or artificial, public or private, situated wholly or partly within
or bordering upon the state, except those private waters that do not combine or effect
a junction with natural surface or underground waters just defined.” Id. Waters of
the state are subject to N.D.C.C. ch. 61-28 and the rules implementing the chapter.
7. The Clean Water Act (CWA) provides that it is the “policy of the Congress to
recognize, preserve, and protect the primary responsibilities of States to . . . plan the
development and use . . . of land and water resources . . . .” 33 U.S.C. § 1251(b).
8. A major concern of the Department is that increased jurisdiction under the Final
Rule opens the regulated community – including the State of North Dakota – to
enforcement actions brought by the federal government relating to waters that have
traditionally been under the sole jurisdiction of the state. The Final Rule establishes
requirements, applicability determinations, and jurisdictional questions that
adversely impact North Dakota’s sovereign rights, interests, and the regulatory
regime the Department has developed to meet these interests.
9. In addition, the Final Rule intrudes upon the congressionally protected right of
states to “plan the development and use . . . of land and water resources.” 33 U.S.C.
§ 1251(b). The Department is the primary body in North Dakota for such planning
and development of land and water resources. The Department currently manages
numerous large water infrastructure projects and assists with flood control and water
supply projects throughout the state.
10. In this capacity, the Department is often in the position of applying for permits
from the Corps under CWA Section 404, the dredge and fill permitting program. 33
U.S.C. § 1344. While many of these projects previously only involved waters of the
state, expanded federal jurisdiction increases the burden on the Department in
ongoing and pending projects. Additionally, obtaining a CWA Section 404 permit
automatically triggers the provisions of the National Environmental Policy Act
(“NEPA”), which creates additional expense and delay for state planning and
infrastructure as the agency must provide necessary information to support an
Environmental Impact Statement or Environmental Assessment.
11. Since 1986, the SWPP has been constructing an efficient network of pipelines,
pump stations, reservoirs, and treatment facilities to bring southwest North Dakota
an adequate quantity of quality water. To date, 33 communities, more than 7,500
rural service locations, 25 contract customers, 26 raw-water customers, and two
additional rural water systems are served by the SWPP. To date, over $430 million
have been invested in the SWPP, and approximately 58,000 North Dakotans are
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served. Future planned SWPP projects include expanding the treatment plant
capacity, intake capacity, raw water transmission capacity, and distribution capacity
expansion, including rural expansion into underserved areas, with over $261 million
estimated in construction costs. The state will now be forced to undertake an
expensive jurisdictional analysis for these construction projects to determine if the
projects impact WOTUS under the expanded definition in the Final Rule and are thus
subject to CWA Section 404 permitting requirements and NEPA. This additional
burden infringes upon the sovereign capacity of North Dakota to plan for the
provision of water to its citizens. The uncertainty the Final Rule places on partially
completed projects impacts North Dakota’s already shortened construction seasons.
While previous jurisdictional determinations will supposedly remain valid, many of
the current construction projects interact with waters that, while waters of the state
and subject to state water quality regulations, do not have jurisdictional
determinations because they were not previously federally regulated.
12. The NAWS project also intends to bring water to under-served North Dakota
citizens in the prairie pothole region. Many cities and rural areas in the NAWS
project area have domestic water supplies that do not meet minimum drinking water
standards. The benefits of NAWS include not only a clean and abundant supply of
water for the residents of North Dakota, but more opportunities for potential
industries and a stronger economy. The Final Rule may compel the Corps or EPA
to review previous jurisdictional studies to determine whether portions of the project
require further CWA Section 404 analysis because of their presence in the prairie
pothole region, causing sovereign injury to the state in its capacity to allocate waters
of the state to serve the public. NAWS projects potentially adversely impacted by
this Final Rule would include approximately $100 million worth of investment,
including two reservoirs, multiple pump stations, and treatment and intake facilities.
NAWS is anticipated to serve approximately 81,000 North Dakotans upon project
completion.
13. There are approximately 3,200 known dams in North Dakota used for fish and
wildlife, recreation, flood control, livestock, irrigation, water supply, etc. Of these
dams, approximately 105 are owned, operated, and maintained by the state. Though
no study has been conducted to analyze the impacts of the Final Rule, the majority
of these dams were not previously covered by the CWA but may now be
jurisdictional under the Final Rule. None of the ongoing dam rehabilitation and
repair projects have been federally regulated. However, given the uncertainty
regarding the impact of the Final Rule and the fact that the dams may be
jurisdictional under the Final Rule, further construction will now be uncertain and
potentially subject to federal permitting requirements. It is also unknown what
adverse impacts such uncertainty could have on dam safety.
14. In sum, the Final Rule will immediately interfere with and disrupt North
Dakota’s governance of the lands and waters within its borders. The Final Rule will
adversely affect laws and regulations that are vital to the overall health and welfare
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of the state of North Dakota and its citizens. By altering longstanding
understandings of jurisdiction and authority over different bodies of water within
North Dakota’s boundaries, the Final Rule will harm North Dakota’s sovereign
interests and disrupt regulations established to protect these interests.
See Doc. No. 44-10, ¶¶ 5-14.
Finally, a declaration from the Chief Engineer of Development with the West Virginia
Department of Transportation (“WVDOT”) summarizes the impact of the new 2023 Rule on that
state.
3. The Rule will significantly burden the WVDOT in several ways. The Rule
purports to follow the pre-2015 definition of waters of the United States, but the
implementation procedures it describes appear to significantly expand the scope of
federal jurisdiction to potentially include almost every waterway in the nation,
including the thousands of miles of ephemeral and intermittent waters present in
West Virginia. Instead of clarifying the scope of federal authority and assist in the
application of the Rule, the Rule expands it and adds confusion, complexity, and
ultimately greater uncertainty in its implementation. This increased uncertainty will
lead to unpredictable outcomes, increased administrative costs, and potential project
delays.
4. Every year, WVDOT completes the environmental review and environmental
permitting for over 350 proposed transportation projects, a process that is managed
by the Technical Support Division, NEPA Compliance and Permitting Section. The
Division provides policy, procedures, training, guidance, and technical assistance to
other sections of WVDOT, including on identifying projects subject to the Clean
Water Act. It also manages environmental programs, works to streamline the
environmental review process, and monitors changing laws and regulations.
5. Permitting transportation projects requires substantial cost in both monetary and
labor hours and represents significant investments by WVDOT. WVDOT employs
six staff members to manage all Section 404 permitting and 17 biologists,
archeologists, and historians for NEPA review generally. In addition, WVDOT
spends millions of dollars on consultants to assist WVDOT in gathering data,
generating calculations and preparing documentation necessary for Section 404
permitting for each project. Despite using best efforts to avoid and minimize impacts
to aquatic resources, WVDOT spends approximately $1 million per mile on
mitigation for roadway improvements and approximately $2.1 million per mile on
new roadway development. Ephemeral streams account for 45% to 55% of that cost.
WVDOT receives an average of 160 Regional/Nationwide General Permits and 3-5
Individual Section 404 permits per year. WVDOT also requests Approved
Jurisdictional Determinations (AJD) on projects each year. Including delineation,
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it takes, on average, approximately $160,000 to $560,000 per project, depending on
the size of the project, to prepare materials for the AJD. The Rule will significantly
increase the resources required from WVDOT to assess new jurisdictional waters
under the Rule.
6. The Rule also expands federal jurisdiction in a way that will significantly increase
the amount of mitigation required to deliver projects. WVDOT has used at least 24
third-party mitigation banks in West Virginia to satisfy compensatory mitigation
requirements. While the number of banks has increased significantly in the last 5 to
7 years, the number of available credits in certain parts of the state has not, largely
because pending banks are not receiving timely approval, and USACE has not been
releasing enough credits to satisfy demand in certain service areas.
7. The Rule will also cause WVDOT to seek federal agency guidance regarding
jurisdiction on a burdensome and time-consuming project-by-project and
case-by-case basis. Guidance from USACE headquarters following a rule change
is typically slow, and it is common to hear inconsistent answers from the USACE at
the district level because they have not been provided with the appropriate guidance
regarding the implementation of the new rule. This inconsistency adds additional
labor hours and expense to the process of conducting WVDOT’s environmental
assessments and consulting with USACE, thus increasing project costs and creating
delays for transportation projects. As to the thousands of miles of ephemeral and
intermittent streams in West Virginia, in particular, having to assess every
transportation project or minor maintenance activity to determine if the land is
regulated under the Clean Water Act would be a significant burden to the WVDOT.
8. WVDOT will be significantly and irreparably harmed if the Rule is not stayed
during the pendency of this litigation. As this Rule is currently being litigated and
may well be overturned or modified in this litigation and/or following a Supreme
Court ruling that affects the definition of “waters of the United States,” it would be
wasteful to require agencies like WVDOT to put forth time and effort in applying
this Rule or having conversations with USACE staff regarding this Rule until its fate
is known.
See Doc. No. 44-11, ¶¶ 3-8.
The twenty-four States in this case have persuasively shown that the new 2023 Rule poses
a threat to their sovereign rights and amounts to irreparable harm. The States involved in this
litigation will expend unrecoverable resources complying with a rule unlikely to withstand judicial
scrutiny. The Court concludes that there is no question this Dataphase factor weighs strongly in
favor of the Plaintiffs and supports the granting of injunctive relief.
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3. BALANCE OF HARMS AND THE PUBLIC INTEREST
The EPA submits the balance of the equities strongly disfavor an injunction. See Doc. No.
92, pp. 28-29. The EPA argues “the public will benefit from the added clarity that the Rule
provides.” Id. at p. 28. Common sense would lead any reasonable person to reach a far different
conclusion. The volume of litigation that has generated from the Clean Water Act over the last
decade from federal district courts, federal courts of appeals, and the Supreme Court of the United
States reveals nothing but chaos and uncertainty. The Clean Water Act has generated nationwide
inconsistency, ambiguity, lack of reliable jurisdictional determinations, and unpredictability for
those waters the EPA and the United States Army Corps of Engineers assert jurisdiction over. Even
a cursory review of the last ten years of caselaw - where many courts have attempted to address
the EPA’s varied interpretations of the Clean Water Act since 2015 - leads one to the conclusion that
common sense is not as common as it used to be.
A careful regard of the public consequences of the new 2023 Rule leads to the conclusion
the balance of harms weighs in favor of the States. It benefits the public to “ensure that federal
agencies do not extend their power beyond the express delegation from Congress.” North Dakota,
127 F. Supp. 3d at 1060.
An injunction at this early stage can avoid the massive waste of resources and delayed
projects in pursuit of permits that may soon be legally irrelevant. By contrast, the EPA will not
suffer any real harm that would justify a denial of injunctive relief. And any potential harm the
federal agencies may suffer from compliance with an injunction is not enough to tip the scales at this
stage. In fact, it is difficult to see what those potential harms may be. The EPA has presented the
new 2023 Rule as essentially a codification of the status quo. The EPA takes the position the new
Rule is founded on the same familiar pre-2015 regulatory scheme. See Doc. No. 92, pp. 9-10.
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One of the purposes of a preliminary injunction is to preserve the status quo. W. Plains, LLC
v. Retzlaff Grain Co. Inc., 870 F.3d 774, 785 (8th Cir. 2017) (citing Univ. of Texas v. Camenisch,
451 U.S. 390, 395 (1981)). The ripple effects caused by the 2023 Rule strongly favor maintaining
the status quo for now. Preserving the status quo is always an important equitable consideration.
Cf. Dayton Bd. of Educ. v. Brinkman, 439 U.S. 1358, 1359 (1978) (staying judgment). There is no
legitimate concern that natural resources are threatened because all local lands and waters remain
under the State’s traditional protection. A delay allows for a full and final resolution on the merits,
and is in the best interests of the public. The Court finds that a far broader segment of the public
would benefit from a preliminary injunction because it would ensure that federal agencies do not
extend their power beyond the express delegation from Congress. First Premier Bank v. United
States Consumer Fin. Prot. Bureau, 819 F. Supp. 2d 906, 922 (D. S.D. 2011).
A balancing of the harms and an analysis of the public interest supports a finding that the risk
of harms to the States is great. There is little public interest or any efficiency gained by
implementing a new rule which codifies the “significant nexus” test before the United States
Supreme Court issues a decision in Sackett. Common sense dictates that it only makes sense to wait.
There is no urgency to implement the 2023 Rule. The Supreme Court’s decision in Sackett will be
issued by June 2023 and will likely address many of the unresolved legal issues and jurisdictional
determinations at the heart of this lawsuit. This Dataphase factors weigh strongly in favor of the
States and support granting a preliminary injunction.
In summary, the Court grants the Plaintiff States motion for a preliminary injunction within
their sovereign borders. The Dataphase factors all weigh strongly in favor of granting injunctive
relief at this early stage.
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As the Texas court recognized in State of Texas, et al. v. United States Environmental
Protection Agency, et al., principles of judicial restraint warrant against a nationwide injunction.
See Texas v. United States Env’t Prot. Agency, No. 3:23-CV-17, 2023 WL 2574591, *12 (S.D. Tex.
Mar. 19, 2023). The court in Texas ruled that the EPA is enjoined from implementing or enforcing
the 2023 Rule in Texas and Idaho. Currently, there are more than 20 states that have not challenged
the new 2023 Rule to date. The record before the Court is not sufficiently complete to justify a
broader application. Further, the Plaintiffs have not requested nationwide application. Accordingly,
this Court limits this injunction to the 24 States named as plaintiffs in this litigation. The request
for a nationwide injunction or nationwide relief makes little sense when many states have not
challenged the 2023 Rule and the United States Supreme Court has yet to decide whether the
Rapanos version of the “significant nexus” test is an appropriate exercise of the EPA’s jurisdiction
under the Clean Water Act. Suffice it to say there is a dire need for some clarification as to what
constitutes “navigable water” under the Clean Water Act. Neither the federal government nor the
States know what the controlling test is, and Supreme Court precedent to date has been of scant
assistance. Hopefully, the Supreme Court decision in Sackett will provide some clarity. The
outcome of the Sackett case may have significant implications for the EPA’s authority to determine
jurisdictional waters under the Clean Water Act. It may also determine the EPA’s ability to enforce
the 2023 WOTUS Rule. Until then, every state will continue to swim in waters of uncertainty,
ambiguity, and chaos.
V. CONCLUSION
In sum, as to the 24 States who are parties to this lawsuit, the Court enjoins the Defendants
from implementing or enforcing the 2023 Rule entitled “Revised Definition of ‘Waters of the United
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States,’” 88 Fed. Reg. 3004 (Jan. 18, 2023). The coalition of 24 States have established the
Dataphase factors all weigh strongly in favor of granting injunctive relief. The Plaintiffs’ motion
for preliminary injunction (Doc. No. 44) is GRANTED. The motion for oral argument (Doc. No.
45) is DENIED.
IT IS SO ORDERED.
Dated this 12th day of April, 2023.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court
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