Another Iteration of the WOTUS Rule Likely to be Served Up Shortly

By Jeffrey Karp, Senior Counsel, and Edward Mahaffey, Law Clerk

On June 9, 2021, the US Environmental Protection Agency and Department of the Army (Agencies) announced their intention to once again revise the "waters of the United States" (WOTUS) rule, a regulation by which they jointly define the scope of federal jurisdiction under the Clean Water Act.

The latest iteration of the rule, the Navigable Waters Protection Rule (NWPR), finalized in 2020, had removed protection from many lakes, streams, and wetlands, including some that are sources of drinking water. After reviewing the NWPR, as directed by President Biden, the Agencies determined the rule is leading to significant environmental degradation. Following this determination, in coordination with the Agencies, the Department of Justice requested that the US District Court for the District of Massachusetts remand the current WOTUS rule to the Agencies. As of June 23, 2021, the NWPR remains in effect throughout the country.

In a joint press release, the Agencies stated: "We are committed to establishing a durable definition of 'waters of the United States' based on Supreme Court precedent and drawing from the lessons learned from the current and previous regulations, as well as input from a wide array of stakeholders." As of June 23, plans for further steps in the rulemaking process have not yet been revealed. However, given the history of the prior attempts to define WOTUS, it's a good bet that the eventual new rule almost certainly will face court challenges.

The Concept of "Waters of the United States" and the Supreme Court

Some provisions of Clean Water Act use the term "navigable waters," including the central prohibition on "the discharge of any pollutant" unless otherwise permitted by the Clean Water Act.[1] The Act itself defines the phrase somewhat confusingly: "The term 'navigable waters' means the waters of the United States, including the territorial seas."[2]

Beginning in the 1970s, both the EPA and the Department of the Army have defined "waters of the United States" in regulation, which have reached the Supreme Court for review on several occasions. In 1985, the Court held that the Act's legislative history showed that when "adopting this definition of 'navigable waters,' Congress evidently intended to repudiate limits that had been placed on federal regulation by earlier water pollution control statutes," and thus "to exercise its powers under the Commerce Clause to regulate at least some waters that would not be deemed 'navigable' under the classical understanding of that term."[3] On the other hand, in 2001, the Supreme Court ruled that the WOTUS concept could not "confer federal authority over an abandoned sand and gravel pit in northern Illinois which provides habitat for migratory birds."[4]

Most recently, the Court considered the definition of WOTUS in Rapanos v. United States in 2006. Rapanos had no majority opinion, creating an unclear precedent and contributing to the uncertainty over the fate of a new WOTUS rule in the courts. Justice Antonin Scalia, writing for a four-justice plurality, took the view that "only relatively permanent, standing or flowing bodies of water," can be waters of the United States, not "channels containing merely intermittent or ephemeral flow."[5]

However, according to Justice Anthony Kennedy in his concurrence: "to constitute 'navigable waters' under the Act, a water or wetland must possess a 'significant nexus' to waters that are or were navigable in fact or that could reasonably be so made."[6] Wetlands meet this nexus requirement if they "either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as 'navigable.'"[7]

The four dissenting justices, in an opinion by Justice John Paul Stevens, would have deferred to the Agencies and upheld the 1985 regulations, which "interpret 'waters of the United States' to cover all traditionally navigable waters; tributaries of these waters; and wetlands adjacent to traditionally navigable waters or their tributaries."[8]

From the Clean Water Rule to the Navigable Waters Protection Rule

In 2015, partly in response to Rapanos, and "to make the process of identifying waters protected under the CWA easier to understand, more predictable, and more consistent with the law and peer-reviewed science," the Agencies published a new version of the WOTUS rule, the Clean Water Rule, intended to conform to Justice Kennedy's opinion in Rapanos.[9] In promulgating the new rule, the Agencies stated that "[t]he scope of jurisdiction in this rule is narrower than that under the existing regulation," partly due to "important qualifiers on some existing categories such as tributaries."[10] Apparently, these restrictions were not enough for some industry groups, such as the American Farm Bureau Federation, or for some state governments, which appealed to the Sixth Circuit. That court blocked application of the rule nationwide in 2015,[11] and while the Supreme Court eventually held that the Court of Appeals had exceeded its jurisdiction, its decision was not rendered until 2018.[12] By that time, the Trump Administration was in power, and the Clean Water Rule did not survive the rollback of environmental regulations.

In February 2017, President Trump ordered the EPA Administrator and Assistant Secretary of the Army for Public Works to review the Clean Water Rule and "consider interpreting the term 'navigable waters,' as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006)," rather than Justice Kennedy's opinion.[13] In December 2019, the EPA and Department of the Army repealed the Clean Water Rule, briefly restoring the 1980s WOTUS rule, until the NWPR was published and took effect on June 22, 2020.

The NWPR limits "waters of the United States" to four categories of waters, and lists several exceptions to these categories.[14] The first category consists of the territorial seas and traditionally navigable waters: "The territorial seas, and waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including waters which are subject to the ebb and flow of the tide."[15] The other three categories are "[t]ributaries"[16] of these waters that are "perennial or intermittent in a typical year;"[17] "[l]akes and ponds, and impoundments of jurisdictional waters;"[18] and "[a]djacent wetlands."[19] Specifically excluded categories of waters include groundwater, "ephemeral streams" and other "[e]phemeral features," most artificial lakes and ponds, and most ditches.[20]

Consequences of the Navigable Waters Protection Rule

The NWPR was sharply criticized by environmental groups, some of which challenged it in court in 2020. For example, the Natural Resources Defense Council, one of the groups suing, denounced the NWPR as the "Dirty Water Rule." EPA officials at the time pushed back on criticism based on "percentages of water features that are claimed to be in, or reductions," asserting that "there really isn't the data to support those statistics," but a 2017 slideshow prepared by EPA and ACOE staff showed that such data actually did exist. The slideshow estimated that 18% of streams and 51% of wetlands nationwide would not be protected under a proposed rule very similar to the final NWPR.[21]

The fears expressed by the opponents of the NWPR appear to have been largely correct. Acting Assistant Secretary of the Army for Civil Works Jaime A. Pinkham observed that "the Navigable Waters Protection Rule has resulted in a 25 percentage point reduction in determinations of waters that would otherwise be afforded protection." According to the Agencies as they announced their intent to repeal the NWPR, their review found "that the rule is significantly reducing clean water protections. The lack of protections is particularly significant in arid states, like New Mexico and Arizona, where nearly every one of over 1,500 streams assessed has been found to be non-jurisdictional."[22] They also noted awareness of "333 projects that would have required Section 404 permitting prior to the Navigable Waters Protection Rule, but no longer do."[23] The Southern Environmental Law Center also pointed out that several public lakes lost protection under the NWPR, including Lake Keowee in South Carolina, a source of drinking water for nearly 400,000 people.

On the other hand, the NWPR's exclusion of groundwater has been undermined to an extent by the Supreme Court's April 2020 decision in County of Maui v. Hawaii Wildlife Fund. In that case, the Court held that 33 USC §§1311(a) and 1362(12)(A) "require a permit if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters."[24] Thus, even if groundwater is not itself part of WOTUS, some polluting activities via groundwater nonetheless may require a permit under the Clean Water Act.

Reactions to Plan to Promulgate a New Rule

The environmental groups that opposed the NWPR generally have supported the Agencies' intention to repeal it. They have pointed out, however, that the steps taken so far are no guarantee that the NWPR will be repealed and replaced quickly, and have urged the Agencies to move swiftly. "The administration must make this a priority, and we will hold their feet to the fire," said a senior Southern Environmental Law Center attorney.

The replacement rule likely will face opposition, though, from industry groups as well as some states. Senator Kevin Cramer (R-ND) already has said that North Dakota likely will challenge the Biden rule in court "in the event of overreach." Ten other Republican senators also expressed opposition in a letter to Pinkham and EPA Administration Michael Regan, and demanded various information on the basis for the Agencies' decision by July 5.

Conclusion

The NWPR remains in effect for now, and both the details and the ultimate fate of the replacement regulation are uncertain, but the new WOTUS rule is expected to increase the bodies of water subject to federal jurisdiction under the Clean Water Act. Thus, it is likely that additional permits will be required under a new rule promulgated pursuant to the Clean Water Act.

[1] 33 USC § 1311(a).

[2] 33 USC § 1362(7).

[3] United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133 (1985).

[4] Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159, 162 (2001).

[5] Rapanos v. United States, 547 U.S. 715, 732-34 (2006).

[6] Id. at 759.

[7] Id. at 780.

[8] Id. at 792.

[9] 80 FR 37053, https://www.federalregister.gov/documents/2015/06/29/2015-13435/clean-water-rule-definition-of-waters-of-the-united-states/.

[10] Id.

[11]Ohio v. United States Army Corps of Engineers, 803 F.3d 804 (2015).

[12] National Association of Manufacturers v. Department of Defense, 138 S. Ct. 617 (2018).