On March 19, 2023, the U.S. District Court for the Southern District of Texas issued a preliminary injunctionpdf stopping the implementation and enforcement of the Waters of the U.S. (“WOTUS”) rule in Texas and Idaho in response to litigation filed by the two states that was consolidated with a suit filed by NAR as part of a large coalition of trade associations. Thus, in Texas and Idaho, the WOTUS rule will not be in effect based on this court’s ruling, but nationwide, the rule is effective as of March 20, 2023, pending other legal challenges.

On January 18, 2023, as part of a large coalition, the National Association of REALTORS® filed a lawsuitpdf in the U.S. District Court for the Southern District of Texas to stop the Environmental Protection Agency’s and Army Corps of Engineers’ (the Agencies’) final Waters of the United States (“WOTUS”) rule from going into effect. The final rule was announced on December 29, 2022, and was set to take effect on March 20, 2023. On February 7, the coalition filed a motion for a preliminary injunctionpdf and the case was consolidated with a lawsuit by the Texas Attorney General (that Idaho eventually joined) on February 13.

The preliminary injunction was granted based on the states’ likelihood of success on the merits, where the court reasoned that the rule’s significant-nexus test expanded the agencies’ jurisdiction beyond Supreme Court precedent and the rule’s categorical extension of federal jurisdiction over all interstate waters, regardless of navigability, were unlikely to withstand judicial review. The trade associations petitioned the court to enjoin the rule nationwide, however, the nationwide injunction was denied because the coalition did not show irreparable harm, lacking specific declarations of immediate harm. The court determined the trade associations have standing because of the states’ standing, citing Town of Chester v. Laroe Ests., Inc., 581 U.S. 433, 439 (2017), which enables the associations’ continued challenge of the rule on the merits.   

There are other lawsuits challenging the WOTUS rule in Kentucky and South Dakota, and Sackett v. EPA, remains pending before the Supreme Court, examining whether wetlands are WOTUS under the Clean Water Act. Stay tuned to NAR.realtor for the latest information.

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