April 2024 WOTUS Litigation Update

The revision of the rule defining "waters of the United States" ("WOTUS"; the "Post-Sackett Rule") has not resolved the litigation surrounding the WOTUS definition.
United States Energy and Natural Resources
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The revision of the rule defining "waters of the United States" ("WOTUS"; the "Post-Sackett Rule") has not resolved the litigation surrounding the WOTUS definition. In fact, it seems that litigation is heating up, with various new developments on multiple fronts. This post will give a short summary of the status of the three main cases on the topic, as well as highlight a new case that could further impact the implementation of the Clean Water Act.

As a brief reminder, there are three pending cases that are impacting the implementation of the Post-Sackett Rule:

  1. Texas Litigation--filed in the Southern District of Texas, with an injunction effective for Texas and Idaho;
  2. Kentucky Litigation--filed in the Eastern District of Kentucky, with an injunction effective for Kentucky (issued by the Sixth Circuit Court of Appeals);
  3. North Dakota Litigation--filed in the District of North Dakota, with an injunction effective for 24 states, including Ohio.

Texas Litigation – Texas, Idaho, and the industry group co-plaintiff's have asked the judge to invalidate the Post-Sackett Rule. In a February 2024 filing, the plaintiffs claim that the Post-Sackett Rule is overly vague and is not compatible with the Sackett ruling. In response, the federal government has challenged the states and industry groups' standing in the case.

Kentucky Litigation – Kentucky filed in December to revive its lawsuit challenging the federal government's rule. The federal government has challenged Kentucky's standing in the case, which Kentucky has opposed. The 6th Circuit Court of Appeals has not ruled on this.

North Dakota Ligation – There have been no substantive rulings in the North Dakota Litigation. The states filed an amended complaint in the fall and a Motion for Summary Judgment in February. The federal government has not filed a response to that motion.

New Litigation

Despite the three pending cases challenging the Post-Sackett Rule, a landowner in North Carolina (where there is no injunction and the Post-Sackett Rule is being implemented) has filed a citizen suit seeking to temporarily and permanently enjoin the implementation of the rule nationwide.1 The heart of the North Carolina case is that the USACE and USEPA not only omitted the "indistinguishability" requirement from Justice Alito's majority opinion in the Sackett decision from the amended rule, but the federal agencies have also failed to enforce the Clean Water Act consistent with the Sackett decision. As a result, the complaint alleges, the federal agencies are asserting federal jurisdiction over waters that should not be considered WOTUS based on the Sackett decision.

We will continue to monitor the litigation in all these cases and provide updates.


1. That case is White v. U.S. Environmental Protection Agency, 2:24-CV-00013-BO-RJ, filed in the Eastern District of North Carolina.

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