On January 23, 2020, the Environmental Protection Agency and U.S. Army Corps of Engineers (collectively, “Agencies”) released the pre-publication version of the much-anticipated final rule narrowing the meaning of the term “waters of the United States,” which defines waters subject to federal jurisdiction under the Clean Water Act (“CWA”). The final rule, called the “Navigable Waters Protection Rule,” represents the latest development in the Trump Administration’s extensive effort to repeal and replace the Obama Administration’s 2015 rule redefining the term (“2015 Rule”) and will become effective 60 days after its publication in the Federal Register.
Notably, the final rule eliminates the 2015 Rule’s “significant nexus” test dictating the jurisdictional status of certain waters on a case-by-case basis, and instead only provides categories of jurisdictional and non-jurisdictional waters which the Agencies believe will provide much needed certainty and predictability. It also excludes ephemeral streams (i.e. having flow only in response to precipitation) and introduces the concept of a “typical year” to qualify a water’s jurisdictional status. In light of the more limited federal jurisdiction in the final rule, the Agencies acknowledge the flexibility afforded to states to manage their own waters and wetlands.
In accordance with Justice Scalia’s plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006), the Agencies interpret jurisdictional waters as being “relatively permanent flowing and standing waterbodies that are traditional navigable waters in their own right or that have a specific surface water connection to traditional navigable waters, as well as wetlands that abut or are otherwise inseparably bound up with such relatively permanent waters.” The final definition accordingly includes four categories of jurisdictional waters:
- The territorial seas and waters capable of being used in interstate or foreign commerce (i.e. traditional navigable waters);
- Tributaries directly or indirectly contributing surface water flow to traditional navigable waters in a typical year;
- Lakes and ponds, and impoundments of jurisdictional waters directly or indirectly contributing surface water to traditional navigable waters in a typical year; and
- Wetlands adjacent to these jurisdictional waters.
The final rule also identifies eleven categories of non-jurisdictional waters, which cannot qualify as one of the four types of jurisdictional waters listed above. According to the Agencies, many of these exclusions reflect longstanding agency practices.
- Ephemeral features;
- Diffuse stormwater runoff and directional sheet flow over upland;
- Ditches that are not traditionally navigable or constructed in a tributary to traditional navigable waters, as well as ditches constructed in adjacent wetlands that do not qualify as adjacent wetlands;
- Prior converted cropland;
- Artificially irrigated areas that would revert to upland if irrigation ceased;
- Artificial lakes and ponds constructed in upland areas or in non-jurisdictional waters;
- Water-filled depressions incidental to mining, and pits excavated to obtain fill, sand, or gravel, that are located in upland areas or non-jurisdictional waters;
- Stormwater control features constructed in upland or in non-jurisdictional waters;
- Groundwater recharge, water reuse, and wastewater recycling structures constructed in upland or in non-jurisdictional waters; and
- Waste treatment systems.
Substantively, the final rule is very similar to the proposed rule, which we summarized in a previous blog post. According to the Agencies, most changes were to provide clarity, rather than substantive alterations in jurisdictional coverage.
The final rule is the most recent development in the disputed meaning of “waters of the United States.” Since 2015, states and interested stakeholders have challenged nearly every effort by the Agencies to define the term. After the implementation of the 2015 Rule, a variety of states brought suit challenging the expanded scope of the definition in the 2015 Rule as an overreach by the Agencies. At least 27 states successfully sought injunctions to block enforcement of the 2015 Rule—creating a patchwork of enforcement where only some states operated under 2015 Rule. See, e.g., Georgia v. Wheeler, 2:15-cv-0079, 2019 WL 3949922 (S.D. Ga. Aug. 21, 2019); North Dakota v. U.S. EPA, 127 F. Supp. 3d 1047 (D.N.D. 2015).
In 2018, when the Agencies attempted to suspend the 2015 Rule, lawsuits were also filed to prevent the Agencies’ action. In South Carolina Coastal Conservation League v. Pruitt, 318 F. Supp. 3d 959 (D.S.C. 2018), environmental groups successfully argued that the Agencies’ attempt to suspend the 2015 Rule violated the rulemaking procedure required in the Administrative Procedure Act (“APA”) and was arbitrary and capricious under the APA. Ultimately, the court issued a nationwide injunction preventing the suspension of the 2015 Rule.
In 2019, when the Agencies formally repealed the 2015 Rule, lawsuits were also filed challenging that action. In New York v. Wheeler, 1:19-cv-11673 (S.D.N.Y. filed Dec. 20 2019), New York, 13 other states, the District of Columbia and New York City brought suit challenging the Agencies’ efforts. In that lawsuit, the plaintiffs allege that the Agencies’ repeal of the 2015 Rule was “arbitrary, capricious, not accordance with law, and without observance of procedure required by law under the APA.”
Following this pattern, the Trump Administration’s redefining of “waters of the United States” will certainly be challenged in the very near future, which could result in a reviewing court blocking its implementation. We will continue to provide updates as courts begin to review the challenges to the rule, as well as other notable challenges brought during its implementation. For more information on this rule or its implications, please contact Fitzgerald Veira, William Droze, Patrick Fanning, Houston Shaner, Morgan Gerard, Rich Pepper, and Mandi Moroz.