Opponents of the Trump administration’s new definition of which waterways and wetlands are protected under the Clean Water Act have lined up in court to make their grievances known.
Don’t expect clarity on the rules anytime soon.
The Trump administration’s Navigable Waters Protection Rule is already on hold in one state — Colorado — and could still be frozen by any one of the various federal judges who are now examining the regulation. Unlike lawsuits over Clean Air Act rules, which land in the U.S. Court of Appeals for the District of Columbia Circuit, Clean Water Act challenges can be heard in any of the nation’s nearly 100 federal district courts.
Outside the courtroom, President Trump’s ability to win a second term in office will also affect whether his new definition of waters of the U.S., or WOTUS, survives.
"If I’m a judge right now and I’m at all savvy, I know there’s an election coming up," said Mark Ryan, a former Clean Water Act attorney for EPA’s Region 10 office. "I know that the rules are in flux. I know there’s a lot at stake, and I know that the Supreme Court isn’t clear on this.
"I’d be inclined to sit on this for a bit."
Trump’s EPA and Army Corps of Engineers have designed a rule that adheres to the late Justice Antonin Scalia’s plurality opinion in the 2006 Supreme Court case Rapanos v. United States.
But Scalia’s narrow interpretation of jurisdictional waters won the votes of only four justices and is counterbalanced by former Justice Anthony Kennedy’s concurring opinion, which offered a broader "significant nexus" test for determining whether a water body is subject to Clean Water Act protections.
Some lawyers who represent the regulated community have told their clients not to assume that any of the Trump administration’s revisions to the WOTUS definition will stick.
"At this point, we’re not counseling people to take drastic measures or changes in light of the uncertainty," said Ashley Peck, a partner at the law firm Holland & Hart LLP.
The Obama-era WOTUS definition that the Trump administration’s rule replaces saw a "crazy patchwork of injunctions" and went into effect in only 22 states, said Larry Liebesman, a former Justice Department attorney who now serves as a senior adviser at the consulting firm Dawson & Associates.
Something similar could happen with Trump’s rewrite, he said.
"There’s a distinct possibility of a patchwork of inconsistent rulings around the country," said Liebesman.
Here’s a look at some of the groups that are suing the Trump administration over its new WOTUS definition.
Status: Partial injunction requests pending
Western ranching groups were among the first to sue the Trump administration, arguing the new WOTUS definition still reaches too far.
Represented by the conservative Pacific Legal Foundation, cattle ranchers in New Mexico, Oregon and Washington have piggybacked on previous iterations of WOTUS litigation to ask for a partial freeze on the Trump rule’s inclusion of nonnavigable wetlands and streams that flow only during certain times of the year.
In the U.S. District Court for the District of New Mexico, PLF requested that the stay apply only in the Land of Enchantment.
Similar motions are pending in the U.S. District Court for the District of Oregon and the U.S. District Court for the Western District of Washington.
Status: Nationwide injunction denied; rule on ice in Colorado
States so far have had uneven luck in calling on the courts to halt the new WOTUS rule.
A judge for the U.S. District Court for the Northern District of California rejected a bid by more than a dozen blue states for a nationwide injunction after finding the states hadn’t shown they would be injured if the rule moved ahead. Those states had argued EPA and the Army Corps violated federal law in issuing the revamped WOTUS rule and said the agencies failed to follow the intent of the Clean Water Act by ignoring current science.
The Centennial State met a different outcome in the U.S. District Court for the District of Colorado, which granted a separate request to halt the rule within the state’s boundaries. The court found that Colorado met the bar for preliminary injunction and agreed to freeze the rule until the litigation plays out.
Attorneys for EPA and the Army Corps are fighting the injunction in the 10th U.S. Circuit Court of Appeals.
Industry groups have asked to get involved in the state lawsuits and will need to step in to fight for the Trump rule if the president loses his bid for reelection to Democrat Joe Biden, said Ryan, the former EPA attorney.
"If you’re industry and you don’t intervene in these lawsuits, there’s no one there to defend if Biden wins," he said.
Status: Multiple cases pending
Environmental groups are mounting their attack against the EPA and Army Corps rule.
Among the challenges is an April lawsuit by green groups such as the Conservation Law Foundation and the Natural Resources Defense Council in the U.S. District Court for the District of Massachusetts.
The Southern Environmental Law Center is representing several groups in a separate complaint in the U.S. District Court for the District of South Carolina. That case has also drawn industry intervenors.
Earthjustice on Monday filed a challenge in the U.S. District Court for the Western District of Washington on behalf of the Puget Soundkeeper Alliance, the Idaho Conservation League, the Sierra Club and Mi Familia Vota. The groups have also asked to halt the rule.
Status: Lawsuits filed
A coalition of tribes Monday told the U.S. District Court for the District of Arizona that the Trump administration’s new WOTUS definition leaves crucial streams and water bodies unprotected.
In their lawsuit, the tribes say the waterways they use to fish, kayak and swim are already under threat by agricultural and mining activities.
They said they would be forced to fill the regulatory gap — at great expense to them — if Clean Water Act protections are lost.
"All of the tribes maintain a deep personal, cultural, and spiritual relationship to water both within their reservation boundaries but also throughout their ancestral lands," the tribes wrote.
"No matter the water body size, whether an ocean, lake, river, stream, creek, spring or seep, the water is treated with respect and dignity as a living entity."
Tribal challengers — which in this case include the Pascua Yaqui Tribe, Quinault Indian Nation and the Fond du Lac Band of Lake Superior Chippewa — have a special ability to highlight the downstream effects of inconsistent water regulations across states, said Hilary Tompkins, a partner at Hogan Lovells and a former Interior Department solicitor.
The Navajo Nation filed a separate lawsuit in the U.S. District Court for the District of New Mexico.
"Tribes bring a unique perspective given that culturally there is a viewpoint that ecological systems are holistic and interconnected," she said.