Environmental Law Matters

On January 23, 2020, the Environmental Protection Agency and the United States Army Corps of Engineers (the “Agencies”) issued the “Navigable Waters Protection Rule” as the latest attempt to define the phrase “waters of the United States” (“WOTUS”) in the Clean Water Act.  The rule, also referred to as the “Replacement Rule,” will be effective sixty (60) days after its publication in the Federal Register.  The Replacement Rule is the second step of a two-step process identified by the Agencies to address the Obama administration’s much litigated 2015 Rule, or “Clean Water Rule.” This first step was the “Repeal Rule,” also referred to as the 2019 Rule, which became effective December 23, 2019.  The 2019 Rule repealed the 2015 Rule in its entirety and clarified that the rules in effect prior to the 2015 Rule (the “1986 Rule”) would be applicable until the step two Replacement Rule became effective.

Challenges to the Agencies’ 2019 Rule are pending in six district courts, wherein both environmental and industry groups have either filed new complaints or sought to supplement existing complaints to challenge the rule in whole or in part. The Agencies determined that the recodification of the pre-2015 rules was preferable to leaving the 2015 Rule in place, though both industry and environmental groups have a lengthy history of challenges to those rules. The Agencies stated that recodification was necessary primarily because the 2015 Rule did not fairly balance states’ traditional enforcement and States’ rights consistent with the Constitution.

The Agencies stated in the rule preamble:

As a threshold matter, the power conferred on the agencies under the CWA to regulate the waters of the United States is grounded in Congress’ commerce power over navigation. The agencies can choose to regulate beyond waters more traditionally understood as navigable, including some tributaries and relatively permanent bodies of water connected to those traditional navigable waters, but the agencies must provide a reasonable basis grounded in the language and structure of the Act for determining the extent of jurisdiction. The agencies can also choose to regulate wetlands adjacent to covered waters beyond those traditionally understood as navigable, if the wetlands are closely connected to those waters, such as in the transitional zone between open waters and dry land.”

In a telling statement the preamble continues, “The purpose of this rulemaking is to establish the boundary between regulated “waters of the United States” and the waters subject solely to State and tribal authority.”  Page 73 Pre-Pub. WOTUS Jan. 23, 2020. The Agencies supported this conclusion in large part based on the 1870 Supreme Court case, The Daniel Ball, 77 U.S. (10 Wall.) 557, 564-65 (1870) which recognized the distinction between federal waters traditionally understood as navigable and waters “subject to the control of the States.” The Daniel Ball is still good law today.

Based on the Agencies’ reliance on the Commerce Clause and the nod to distinguishing between federal waters and state waters, the rule establishes four classifications of waters of the United States:

• 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;
• Tributaries;
• Lakes and ponds, and impoundments of jurisdictional waters; and
• Adjacent wetlands.

In contrast, the 1986 Rule and 2015 Rule had seven and eight classifications respectively. The Replacement Rule defines terms used in the four classifications, such as “tributaries” and “adjacent wetlands.” Absent, however, are designations such as interstate waters; site-specific significant nexus tests; ephemeral streams; and neighboring wetlands that do not physically abut the first three water listed categories. Tributaries of traditional navigable waters include only perennial and intermittent streams which are also defined based primarily on flow.  A connection to groundwater, however, may not be necessary.  Although the Replacement Rule does support a broader definition for traditional navigable waters than Section 10 of the Rivers and Harbors Act, it would not support the oft-cited “float your boat test,” at least according to the preamble.  Gone also is the identification of a tributary based only on physical indicators such as bed, bank and ordinary high water mark.  Instead, flow is key to determining whether a stream is perennial or intermittent.  The Replacement Rule also provides exclusions, many of which are in previous iterations of the WOTUS rules; however, it notably clarifies that groundwater is excluded as WOTUS.  Ditches not meeting the requirement of one of the four classifications are excluded, as are ditches in wetlands that are not in adjacent wetlands.

Many of the commenters chastised the Agencies for relying only on the plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006) and not on Justice Kennedy’s “significant nexus” test.  However, the Agencies disagreed with that comment in the preamble, explaining in numerous places that the concepts underpinning the “significant nexus” text are included.  For example, the inclusion of tributaries is based on significant nexus concepts of Justice Kennedy.

The Navigable Waters Protection Rule will surely be challenged in one or more United States district courts, most likely with accompanying motions to enjoin the Rule from going into effect.  It bears mentioning that litigation is still active in District Courts regarding the 2015 Rule and, as noted above, the 2019 Rule as well.  Thus, the beat goes on in the attempt to define jurisdictional waters under the Clean Water Act.