Revised Definition of “Waters of the United States” History of the Effects of Litigation Over Recent Definitions of “Waters of the United States”


Revised Definition of "Waters of the United States"

History of the Effects of Litigation over Recent Definitions of

"Waters of the United States"

Each of the agencies' recent rulemakings to revise the definition of "waters of the United States"
has given rise to a host of legal challenges. Over the years, this litigation has, at times, led to different
definitions of "waters of the United States" being in effect in different parts of the country. As of the date
of signature of this final rule, there are over a dozen cases challenging the agencies' rules defining
"waters of the United States," including the 2015 Clean Water Rule, 2019 Repeal Rule, and the 2020
Navigable Waters Protection Rule (2020 NWPR).1 All of these cases are administratively closed,
inactive, or being held in abeyance as of the date this final rule was signed. Some of these cases challenge
only one of the rules, while others challenge two or even all three rules in the same lawsuit.

Parties challenging the 2015 Clean Water Rule initially brought suit in both federal district and
appellate courts. The day before the 2015 Clean Water Rule's August 28, 2015 effective date, the U.S.
District Court for the District of North Dakota preliminarily enjoined the rule in the 13 states challenging
the rule in that court at the time. Specifically, 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); Order, North Dakota v. EPA, No. 3:15-cv-59, Dkt. No. 79 (D.N.D. Sept.
4, 2015) (limiting scope of preliminary injunction to the parties before the court).

Meanwhile, the petitions filed in the courts of appeals seeking review of the 2015 Clean Water
Rule were consolidated in the U.S. Court of Appeals for the Sixth Circuit. In that litigation, the agencies
argued that the Sixth Circuit properly had subject matter jurisdiction to review the rule, while other
parties argued that jurisdiction over review of the rule lay with the district courts. Some parties further
argued that the rule should be stayed. In response, 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 ofDef Final Rule, 803 F.3d 804, 806, 808 (6th Cir. 2015).

On January 13, 2017, the U.S. 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'I
Ass 'n ofMfrs. v. Dep't ofDef., 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 district courts. Nat 'I
Ass 'n ofMfrs. v. Dep't ofDef, 138 S. Ct. 617, 624 (2018). In response to the Supreme Court's decision,
on February 28, 2018, the Sixth Circuit lifted its nationwide stay of the 2015 Clean Water Rule and

1 Pascua Yaqui Tribe v. EPA, No. 4:20-cv-266 (D. Ariz.); Colorado v. EPA, No. l:20-cv-1461 (D. Colo.):. I hi.
Exploration & Mining Ass'n v. EPA, No. l:16-cv-1279 (D.D.C.); Envtl. Integrity Project v. Regan, No. l:20-cv-
1734 (D.D.C.); Se. Stormwater Ass 'n v. EPA, No. 4:15-cv-579 (N.D. Fla.); Se. legal Found, v. EPA, No. l:15-cv-
2488 (N.D. Ga.); Chesapeake Bay Found, v. Regan, Nos. l:20-cv-1063 & l:20-cv-1064 (D. Md.); Navajo Nation v.
Regan, No. 2:20-cv-602 (D.N.M.); N.M. Cattle Growers' Ass'n v. EPA, No. l:19-cv-988 (D.N.M.); North Dakota v.
EPA, No. 3:15-cv-59 (D.N.D.); Ohio v. EPA, No. 2:15-cv-2467 (S.D. Ohio) (dismissed as moot), No. 22-3292 (6th
Cir.) (appeal stayed); Or. Cattlemen 'sAss'n v. EPA, No. 3:19-cv-564 (D. Or.); Puget Soundkeeper All. v. EPA, No.
2:20-cv-950 (W.D. Wash.); Wash. Cattlemen 'sAss'n v. EPA, No. 2:19-cv-569 (W.D. Wash.).

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dismissed the corresponding petitions for review. See In re Dep 't ofDef. & EPA Final Rule, 713 Fed.
Appx. 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 to the 2015 Clean Water Rule (83
FR 5200). The Applicability Date Rule restored the pre-2015 regulatory regime. On August 16, 2018—a
mere six months after the rule had been issued—the U.S. 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); see also Order, Puget Soundkeeper All. v. Wheeler, No. 2:15-cv-1342,
Dkt. No. 61 (W.D. Wash. Nov. 26, 2018) (vacating the Applicability Date Rule nationwide as well).

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. Specifically, 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).
Due to 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). Thus, in these 24 states, the agencies
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, raising to 28 the total number of 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).

The regulatory landscape shifted yet again in 2019. First, in May 2019, Colorado withdrew from
the North Dakota district court litigation, prompting the court to lift its injunction against the 2015 Clean
Water Rule in that state. North Dakota v. EPA, No. 3:15-cv-59, Dkt. No. 280 (D.N.D. May 14, 2019).2
Then, 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).3

2 The court also granted New Mexico's motion to withdraw from the litigation and lifted the preliminary injunction
as to New Mexico. Order, North Dakota v. EPA, No. 3:15-cv-59, Dkt. No. 280 (D.N.D. May 14, 2019). At the same
time, however, the court stated that the preliminary injunction against the 2015 Clean Water Rule would remain in
effect as to a plaintiff-intervenor representing ten counties in New Mexico. The agencies filed a motion in May 2019
seeking clarification of the applicability of the court's preliminary injunction to those ten counties in New Mexico,
but the court has not yet ruled on the motion. See Defendants' Motion for Clarification Regarding the Scope of the
Court's Preliminary Injunction, North Dakota v. EPA, No. 3:15-cv-59, Dkt. No. 282 (D.N.D. May 24, 2019).

3 Three other district courts denied motions seeking to preliminarily enjoin the 2015 Clean Water Rule. See Ohio v.
U.S. Army Corps ofEng'rs, No. 2:15-cv-2467, Dkt. No. 86 (S.D. Ohio Mar. 26, 2019) (denying preliminary
injunction motion filed by Michigan, Ohio, and Tennessee), appeal dismissed as moot, Ohio v. EPA, 969 F.3d 306,
310 (6th Cir. 2020); Oklahoma v. EPA, No. 4:15-cv-381, Dkt. No. 110 (N.D. Okla. May 29, 2019); Washington
Cattlemen 'sAss'n v. EPA, No. 2:19-cv-569, Dkt. No. 61 (W.D. Wash. Dec. 30, 2019).

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As a result of these various court orders, the agencies 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 FR 56626 (Oct. 22, 2019).4 With the repeal of the 2015 Clean
Water Rule, the agencies returned to implementing the pre-2015 regulatory regime nationwide.

The agencies implemented the pre-2015 regulatory regime nationwide until the 2020 NWPR went
into effect on June 22, 2020 in all states except Colorado. 85 FR 22250 (Apr. 21, 2020). In Colorado, the
2020 NWPR was subject to a preliminary injunction issued by the U.S. 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; 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 agencies implemented the 2020 NWPR nationwide until the rule was vacated on August 30,
2021, by the U.S. District Court for the District of Arizona in Pascua Yaqui Tribe v. EPA, 557 F. Supp.
3d 949 (D. Ariz. 2021). Following the court's vacatur order, the agencies returned to implementing the
pre-2015 regulatory regime nationwide. See, e.g., U.S. EPA, Current Implementation of Waters of the
United States, https://www.epa.gov/wotus/current-implementation-waters-united-states. Another court
subsequently issued an order vacating the 2020 NWPR on September 27, 2021. Navajo Nation v. Regan,
563 F. Supp. 3d 1164 (D.N.M. 2021). In six additional cases, courts remanded the 2020 NWPR without
vacatur or without addressing vacatur.5

4	Two courts remanded the 2015 Clean Water Rule to the agencies prior to issuance of the 2019 Repeal Rule, but
neither court vacated the rule. See Texas v. EPA, 389 F. Supp. 3d 497 (S.D. Tex. 2019); Georgia v. Wheeler, 418 F.
Supp. 3d 1336 (S.D. Ga. 2019).

5	Order, Pueblo ofLaguna v. Regan, No. l:21-cv-277, Dkt. No. 40 (D.N.M. Sept. 21, 2021) (declining to reach issue
of vacatur in light of the Pascua decision); Order, California v. Wheeler, No. 3:20-cv-3005, Dkt. No. 271 (N.D. Cal.
Sept. 16, 2021) (same); Order, WaterkeeperAll. v. Regan, No. 3:18-cv-3521, Dkt. No. 125 (N.D. Cal. Sept. 16,
2021) (same); Order, Conservation Law Found, v. EPA, No. l:20-cv-10820, Dkt. No. 122 (D. Mass. Sept. 1, 2021)
(same); Order, S.C. Coastal Conservation League v. Regan, No. 2:20-cv-1687, Dkt. No. 147 (D.S.C. July 15, 2021)
(remanding without vacating); Order, Murray v. Wheeler, No. l:19-cv-1498, Dkt. No. 46 (N.D.N.Y. Sept. 7, 2021)
(same).

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