On April 12, 2023, the U.S. District Court for the District of North Dakota issued a preliminary injunction blocking the Biden administration’s Waters of the United States (WOTUS) rule in twenty-four states (the case is West Virginia v. EPA, Case No. 3:23-cv-00032-DLH-ARS). Taking into account the earlier injunction affecting the states of Texas and Idaho (see our previous eAlert), the Biden administration’s WOTUS rule does not apply to the following twenty-six states: Idaho, Texas, Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia and Wyoming.

In West Virginia, the court’s opinion followed a similar format as the opinion in Texas v. EPA (Case No. 3:23-cv-00017), where the U.S. District Court for the Southern District of Texas enjoined the Biden administration’s WOTUS rule in Texas and Idaho. As in Texas, the court in West Virginia began by discussing the background of the WOTUS rule at issue and the broader history of WOTUS’ role within the Clean Water Act. For a summary of the beleaguered Biden administration’s 2023 WOTUS rule and the relevant legal history, see our previous eAlert and the Environmental Protection Agency’s “Waters of the United States” webpage.

The court then began its legal analysis with a discussion of standing. (Standing is a constitutional requirement holding that the party filing a lawsuit must show injury, causation and redressability before a federal court can hear the case.) Notably, in Kentucky v. EPA (Case No. 3:23-cv-0007-GFVT), another recent case where state-plaintiffs brought a motion for a preliminary injunction to block the Biden administration’s WOTUS rule, the U.S. District Court for the Eastern District of Kentucky ruled against the states, finding that the states could not show how they were being injured by a rule that had not yet been enforced (see our updated eAlert). However, the court in West Virginia rejected this legal analysis and instead adopts the approach employed in Texas, where the court held states are entitled to special solicitude on issues affecting state sovereignty, and thus do not have to meet every aspect of the standing requirement.

The court next applied the four-part inquiry to determine whether a preliminary injunction was warranted. The four factors the court must weigh while making the inquiry are:

• whether there is a threat of irreparable harm to the party brining the suit (the movant),
• the balance of the harms between the party seeking to block the action and the party whose action would be enjoined,
• the movant’s likelihood of success on the merits, and
• the public interest. The court once again adopted the reasoning in Texas, taking the unusual step of inserting block quotes from the Texas opinion to underscore its agreement with that court’s analysis.

Both courts found that the state-plaintiffs were likely to succeed on the merits of their case, because “at least two aspects [of the 2023 Rule] are unlikely to withstand judicial review.” (Opinion at 17, quoting Texas at 10). The court held that the Biden administration’s rule “reads navigability out of the [Clean Water Act]” and applies a different test than the one outlined in the Supreme Court case Rapanos v. United States (that test is the ‘significant nexus’ test). (Opinion at 18, quoting Texas at 10) (547 U.S. 715 (2006)). The court concludes by “find[ing] the new 2023 Rule is neither understandable nor “intelligible, and its boundaries are unlimited. . . [which] raises a litany of other statutory and constitutional concerns.” (Opinion at 19).

As the law currently stands, the nation is divided — about half the country applies the Biden administration’s 2023 WOTUS rule, while the other half will determine whether waters are jurisdictional using regulatory framework prior to 2015 (pre-2015 framework). An explanation of the pre-2015 framework and accompanying guidance documents can be found at the Environmental Protection Agency’s website.  The U.S. Supreme Court is expected to issue a ruling on Sackett v. EPA (Docket No. 21-454), a case that directly addresses WOTUS, in the near future (the expected release date range will begin in the next few days and last until the end of June). One potential outcome of the Court’s ruling in Sackett is a directive to the EPA and Army Corps of Engineers to reconsider their 2023 WOTUS rule.

We will continue to monitor the status of this rule and the outcome of Sackett v. EPA and will provide updates as necessary.