Texas v. U.S. Envtl. Prot. Agency

662 F.Supp.3d 739

State of TEXAS, et al., Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.

No. 3:23-cv-17

United States District Court, S.D. Texas, Galveston Division

Signed March 19, 2023

Henry Carl Myers, Jessica Amber Ahmed, Logan Harrell, Pro Hac Vice, Mark Andrew Steinbach, Office of the Attorney General, General Litigation Division, Austin, TX, for Plaintiffs State of Texas, Railroad Commission of Texas, Texas Department of Agriculture, Texas General Land Office, Texas Department of Transportation.

Henry Carl Myers, Jessica Amber Ahmed, Logan Harrell, Pro Hac Vice, Office of the Attorney General, General Litigation Division, Austin, TX, for Plaintiff Texas Commission on Environmental Quality.

Brett E. Legner, Pro Hac Vice, Timothy S. Bishop, Pro Hac Vice, Mayer Brown LLP, Chicago, IL, James Brian Danford, Jr., Mayer Brown LLP, Houston, TX, Kevin Scott Ranlett, Houston, TX, for Plaintiffs American Farm Bureau Federation, American Petroleum Institute, American Road and Transportation Builders Association, Associated General Contractors of America, Leading Builders of America, Matagorda County Farm Bureau, National Association of Home Builders, National Association of REALTORS, National Cattlemens Beef Association, National Corn Growers Association, National Mining Association, National Multifamily Housing Council, National Pork Producers Council, National Stone, Sand and Gravel Association, Public Lands Council, Texas Farm Bureau, U.S. Poultry and Egg Association, National Apartment Association.

David M.S. Dewhirst, Pro Hac Vice, Joshua N. Turner, Pro Hac Vice, Lincoln Davis Wilson, Pro Hac Vice, Idaho Attorney General's Office Idaho Attorney General's Office, Boise, ID, for Plaintiff State of Idaho.

Andrew J. Doyle, Pro Hac Vice, United States Department of Justice, Environment & Natural R. San Francisco Field Office, San Francisco, CA, Hubert T. Lee, Pro Hac Vice, Sarah Izfar, Pro Hac Vice, U.S. Department of Justice, Washington, DC, Elliot Warren Higgins, Pro Hac Vice, U.S. Dept. of Justice, Environment and Natural Resources Division, Washington, DC, Sonya J. Shea, Pro Hac Vice, U.S. Department of Justice, Denver, CO, for Defendants.

MEMORANDUM OPINION AND ORDER GRANTING PRELIMINARY INJUNCTION

Jeffrey Vincent Brown, United States District Judge:

A federal rule revising the definition of "waters of the United States" under the Clean Water Act, 33 U.S.C. § 1251 et seq., will take effect on March 20, 2023. Revised Definition of "Waters of the United States," 88 Fed. Reg. 3004 (Jan. 18, 2023) ("the Rule" or "the 2023 Rule"). Two states—Texas and Idaho ("the States")—and eighteen national trade associations ("the Associations") have asked the court to preliminarily enjoin the Rule while the court considers their consolidated request to vacate and remand. Dkts. 13, 34; 20 Dkt. 15.¹ The States have asked to enjoin the Rule within their borders, Dkts. 13, 34; the Associations have asked for a nationwide injunction, 20 Dkt. 15. The court grants the States' motion² but denies the Associations'.

I. Background

A. The Act

Congress passed the Clean Water Act to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). Congress also carefully crafted the 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." Id. § 1251(b).

Discharging pollutants into, dredging, or filling "navigable waters" without a federal permit may expose a person to civil or criminal penalties under the Act. Id. §§ 1311, 1319, 1342, 1344. For instance, one who violates the Act's permitting requirements may suffer monetary penalties of up to $25,000 per day, imprisonment for up to one year, or both. Id. at § 1319(c)(1). The phrase "discharge of a pollutant" encompasses "any addition of any pollutant to navigable waters from any point source," and "pollutant" includes not only traditional contaminants but also solids such as "dredged spoil, . . . rock, sand, [and] cellar dirt." Id. § 1362(6), (12).

The Act defines "navigable waters" as "waters of the United States, including the territorial seas." Id. § 1362(7). "Because many of the Act's substantive provisions apply to 'navigable waters,' the statutory phrase 'waters of the United States' circumscribes the geographic scope of the Act in certain respects." Nat'l Ass'n of Mfrs. v. Dep't of Def., 583 U.S. 109, 138 S. Ct. 617, 624, 199 L.Ed.2d 501 (2018).

Congress authorized the Environmental Protection Agency to administer the Act, 33 U.S.C. § 1251(d), and the U.S. Army Corps of Engineers to issue permits for projects on land or water under the Act's jurisdiction, id. § 1344. But the EPA and the Corps ("the Agencies") do not have unbridled jurisdiction to regulate all the nation's waters. Rather, "[i]n regulating discharge, the Act 'anticipates a partnership between the States and the Federal Government,' with both sovereigns sharing regulatory responsibilities for water protection." Gulf Restoration Network v. McCarthy, 783 F.3d 227, 230 (5th Cir. 2015) (quoting Arkansas v. Oklahoma, 503 U.S. 91, 101, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992)).

B. Supreme Court Precedent

The Supreme Court has taken a few opportunities to interpret the meaning of "waters of the United States" under the Act. First, in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985), the Court held that a wetland directly abutting a traditionally navigable creek qualified as "waters of the United States." Rapanos v. United States, 547 U.S. 715, 765-66, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006) (Kennedy, J., concurring) (citing Riverside Bayview, 474 U.S. at 139, 106 S.Ct. 455). But the Riverside Bayview Court reserved "the question of the Corps' authority to regulate wetlands other than those adjacent to open waters." Rapanos, 547 U.S. at 766, 126 S.Ct. 2208 (citing Riverside Bayview, 474 U.S. at 131-32, 131 n.8, 106 S.Ct. 455).

Sixteen years later, Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001), presented another opportunity. The SWANCC Court rejected the Corps' interpretation of isolated sand and gravel pits that "seasonally ponded" as "waters of the United States," id. at 164, 172-74, 121 S.Ct. 675, and held that the phrase excluded "nonnavigable, isolated, intrastate waters," id. at 172, 121 S.Ct. 675.

Finally, the Court most recently considered this question in Rapanos. In a plurality opinion by Justice Scalia, the Rapanos Court vacated and remanded a rule extending the meaning of "waters of the United States" under the Act to "wetlands, which lie near ditches or man-made drains that eventually empty into traditional navigable waters." Rapanos, 547 U.S. at 729, 126 S.Ct. 2208; see also id. at 787, 126 S.Ct. 2208 (Kennedy, J., concurring in the judgment). The four-justice plurality proposed the so-called "relatively permanent" test for determining whether wetlands were "waters of the United States." Id. at 739, 742, 126 S.Ct. 2208. Justice Kennedy's concurrence suggested a different approach: the "significant nexus" test. Id. at 779-80, 126 S.Ct. 2208.

In October 2022, the Supreme Court heard oral argument in Sackett v. EPA, — U.S. —, 142 S. Ct. 896, 211 L.Ed.2d 604 (2022). Sackett is on appeal from the Ninth Circuit, where the court "appl[ied] Justice Kennedy's 'significant nexus' inquiry to evaluate whether EPA has jurisdiction to regulate" wetlands. Sackett v. EPA, 8 F.4th 1075, 1091 (9th Cir. 2021), cert. granted in part, — U.S. —, 142 S. Ct. 896, 211 L.Ed.2d 604 (2022). In granting the petition for writ of certiorari, the Court characterized the Sackett issue as "[w]hether the Ninth Circuit set forth the proper test for determining whether wetlands" amount to "waters of the United States" under the Act. Sackett, — U.S. —, 142 S. Ct. 896, 211 L.Ed.2d 604 (2022). The Court is anticipated to decide Sackett before the end of the term.

C. The 2023 Rule

The Rule defines "waters" to include the five following categories:

• traditional navigable waters, the territorial seas, and interstate waters ("paragraph (a)(1) waters");

• impoundments of 'waters of the United States' ("paragraph (a)(2) impoundments");

• 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");

• 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

• 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. The Rule also lists eight exclusions, including waste-treatment systems, artificially irrigated areas that are naturally dry, and ditches that are "excavated wholly in and draining only dry land and that do not carry a relatively permanent flow of water." Id. at 3067.

Two of the 2023 Rule's features are particularly salient to the plaintiffs' claims. First, the Rule codifies a modified version of Justice Kennedy's significant-nexus test. Compare id. at 3006, with Rapanos, 547 U.S. at 780, 126 S.Ct. 2208. Second, the Rule imposes jurisdiction on all "interstate waters, regardless of their navigability." 88 Fed. Reg. at...