October 20, 2015

Federal Judges Cast Doubt on WOTUS


  • The EPA and Army Corps of Engineers recently issued a rule giving themselves broad new power over water and land across the country.

  • The rule is a Washington power grab that has more to do with controlling land-use decisions than ensuring access to clean water.

  • A federal court has blocked implementation because challengers to the rule have “demonstrated a substantial possibility of success on the merits of their claims.”


The Obama administration has issued a rule vastly expanding the definition of “waters of the United States” for purposes of the Clean Water Act. It extends federal jurisdiction to irrigation ditches, isolated ponds, prairie potholes, and other non-navigable waters. The WOTUS rule is another Washington power grab that has more to do with controlling land-use decisions than ensuring access to clean water.

“A substantial possibility of success on the merits of their claims”

Nearly 90 plaintiffs have filed lawsuits regarding the legality of the rule, including 31 state governments, farm organizations, energy producers, and manufacturing groups. The rule’s critics say that it is inconsistent with Supreme Court precedent and does not comply with the Clean Water Act and other laws. Based on recent rulings, the federal judiciary appears to be sympathetic to these suits.

wotus-court-timeline

On August 27, the U.S. District Court for North Dakota issued a preliminary injunction halting implementation of the rule in 13 states that had sued. The court said that the states “are likely to succeed on their claim, because (1) it appears likely that the EPA has violated its Congressional grant of authority in its promulgation of the Rule at issue, and (2) it appears likely the EPA failed to comply with [Administrative Procedure Act] requirements when promulgating the Rule.” The court found that the rule was likely the result of “a process that is inexplicable, arbitrary, and devoid of a reasoned process.” It also noted that the administration’s definition of “tributary” likely “includes vast numbers of waters that are unlikely to have a nexus to navigable waters within any reasonable understanding of the term.” The court concluded that the rule would likely cause irreparable harm because states would lose their sovereignty over intrastate waters and lose money they could never recover.

On October 9, the U.S. Court of Appeals for the 6th Circuit issued a stay halting implementation of the rule across the country pending further judicial proceedings. “Petitioners have demonstrated a substantial possibility of success on the merits of their claims,” the court concluded. It cited a particular concern: “the sheer breadth of the ripple effects caused by the Rule’s definitional changes counsels strongly in favor of maintaining the status quo for the time being.”

Last Tuesday, October 13, the U.S. Judicial Panel on Multidistrict Litigation dealt another blow to defenders of the rule. The panel denied the administration’s request to centralize nine lawsuits pending in seven districts against the rule. The administration hoped to combine the cases and move them to a district court in Washington, D.C., where it expected its rule would stand a better chance. The judges on the panel found that centralizing the cases would be “inappropriate” and “problematic.”

The Senate is pushing back

The Senate is not waiting for the courts to deal with this destructive and politically motivated rule. On March 25, a bipartisan group of 59 Senators voted in favor of a non-binding budget amendment to limit the administration’s expansion of federal jurisdiction under the Clean Water Act. On June 10, the Environment and Public Works Committee passed the Federal Water Quality Protection Act – S. 1140 – introduced by Senator Barrasso. This bill directs the EPA and the Corps to issue a revised rule that protects traditional navigable water and wetlands from water pollution, while also protecting private landowners. On September 17, Senator Ernst introduced a resolution of disapproval – which currently has 49 co-sponsors – to block the rule under the Congressional Review Act.

If implemented, the WOTUS rule would force farmers, ranchers, families, home builders, manufacturers, local governments, and other property owners to seek permission from federal bureaucrats before beginning any activity remotely related to water. It would expose Americans to an expensive and time-consuming application process for permits and potentially to ideological mistreatment by regulators.

This rule is one of a series of executive actions by the Obama administration that will constrain our country’s economic growth. Republicans are working to support Americans who responsibly enjoy our nation’s abundant natural resources and use them to create economic opportunity.

Issue Tag: Energy