New definition of “waters of the United States” takes effect June 22, 2020 everywhere except Colorado under split decisions.
In the closely watched battle over the scope of the Clean Water Act (CWA), a federal court in California has denied a motion brought by a coalition of states to stay the Trump Administration’s rule narrowing the law’s reach. However, the federal court in Colorado has enjoined the rule in that state, and litigation in these and other courts will continue — including an anticipated appeal of the California decision to the Ninth Circuit Court of Appeals.
The US Environmental Protection Agency (EPA) and the US Army Corps of Engineers’ (the Army Corps) “Navigable Waters Protection Rule” (NWPR) goes into effect in most parts of the country on June 22, 2020.[i] The NWPR is the culminating step in the Trump Administration’s multi-year effort to repeal and replace Obama Administration regulations defining the term “waters of the United States” (WOTUS) and, by extension, the scope of waters subject to federal jurisdiction and regulation under the CWA. The NWPR codifies a new and more narrow definition of these areas “in a manner consistent with” Justice Antonin Scalia’s 2006 plurality opinion in Rapanos v. United States.[ii]
A coalition of seventeen states, the District of Columbia, and New York City, led by the State of California, filed a preliminary motion to enjoin implementation of the rule or stay its effective date in the federal district court for the Northern District of California. (Twenty-three other states have been permitted to intervene in this action in support of the NWPR.) After a hearing on the motions, including additional briefing on whether a nationwide stay should be issued, the court denied the coalition’s request for any stay. The court found that the plaintiffs failed to show they would be likely to succeed on the merits by arguing that the NWPR is an unreasonable interpretation of the CWA. Separately, on the same day, the federal district court for the District of Colorado came to the opposite conclusion and stayed the rule’s implementation in that state. As a result, the NWPR is now in effect as of June 22, 2020, except in Colorado.[iii]
In addition to those proceedings, environmental groups have filed complaints seeking to overturn the NWPR in district courts in Massachusetts, Maryland, and South Carolina, contending that the rule’s redefinition of “waters of the United States” is arbitrary and capricious. An agricultural trade group has filed a complaint in district court in New Mexico claiming that the NWPR does not go far enough to limit CWA jurisdiction, and is seeking to enjoin enforcement of certain aspects of the NWPR that it believes would regulate certain intermittent tributaries and non-navigable wetland features on privately owned land.
This scenario — with lawsuits over the NWPR proceeding in multiple federal district courts — was largely expected following the US Supreme Court’s 2018 decision in National Association of Manufacturers v. Department of Defense,[iv] in which the Court held that challenges to the definition of WOTUS must be filed in federal district courts.
These and any other challenges will all proceed simultaneously and, in the case of California and Colorado, have already led to divergent outcomes, ensuring that uncertainty over the ultimate scope of the CWA’s reach will go on for some time.
The NWPR redefines “waters of the United States” to categorically regulate four main types of waters: (1) 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 that are subject to the ebb and flow of the tide (collectively, often referred to as “traditional navigable waters”); (2) tributaries; (3) lakes, ponds, and impoundments of other jurisdictional waters; and (4) wetlands adjacent to other waters of the United States.
The NWPR expressly excludes twelve types of waters from regulation:
- Waters not included in the four “jurisdictional-by-rule” categories above
- Groundwater, including groundwater drained through subsurface drainage systems
- Ephemeral water features, including ephemeral streams, swales, gullies, rills, and pools (“ephemeral” meaning “surface water flowing or pooling only in direct response to precipitation,” such as rain or snowfall)
- Diffuse stormwater run-off and directional sheet flow over upland
- Ditches that are neither traditional navigable waters nor tributaries, and those portions of ditches constructed in adjacent wetlands that do not themselves satisfy the definition of adjacent wetlands
- Prior converted cropland
- Artificially irrigated areas, including fields flooded for agricultural production that would revert to upland in the absence of irrigation
- Artificial lakes and ponds, including water storage reservoirs and farm, irrigation, stock watering, and log cleaning ponds, constructed or excavated in upland or in non-jurisdictional waters, so long as those artificial lakes and ponds are not impoundments of jurisdictional waters that meet certain enumerated conditions
- Water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to mining or construction activity, and pits excavated in upland or in non-jurisdictional waters for the purpose of obtaining fill, sand, or gravel
- Stormwater control features constructed or excavated in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater runoff
- Groundwater recharge, water reuse, and wastewater recycling structures, including detention, retention, and infiltration basins and ponds, constructed or excavated in upland or in non-jurisdictional waters
- Waste treatment systems
First among the notable changes in the final NWPR is the exclusion of ephemeral waters, which are defined as water features that only flow in response to precipitation events such as rain and snowmelt. The final rule eliminates these features categorically from regulation,[v] and it was this element of the new rule that the district court in Colorado took issue with, in light of its reading of Rapanos as foreclosing this approach. That said, the rule clarifies that a jurisdictional tributary (which must be perennial or intermittent in a typical year) will remain jurisdictional if it flows through a non-jurisdictional feature, such as a ditch, ephemeral stream, or subterranean river. Additionally, in the final rule, “certain ephemeral features do not sever jurisdiction of an upstream relatively permanent jurisdictional water so long as they provide a surface water connection to a downstream jurisdictional water in a typical year.”[vi]
The NWPR also more narrowly defines which “adjacent wetlands” are considered jurisdictional under the CWA. To be subject to regulation, wetlands must: (1) “abut,” meaning “to touch at least at one point or side of,” an otherwise jurisdictional water; (2) have a direct hydrologic surface connection to other jurisdictional non-wetland waters in a typical year; or (3) be separated from jurisdictional waters only by a natural berm, bank, dune, or other similar natural feature. In other words, the rule removes protections for wetlands connected to jurisdictional waters by only indirect surface connections, such as by intermittent or ephemeral streams.
Further, the NWPR dispenses with the “significant nexus” test authored by Justice Anthony Kennedy in Rapanos and incorporated in the previous Obama Administration WOTUS rule. Such a test would have required a multi-factor analysis on a case-by-case basis to determine the jurisdictional status of numerous waters and wetlands, including certain regional water features such as prairie potholes and vernal pools, waters located within the 100-year floodplain of any jurisdictional water, and waters located within 4,000 feet of the high tide line or ordinary high water mark of any jurisdictional water. Instead, the agencies state that the NWPR will bring “simplicity and clarity” by delineating categorically jurisdictional or categorically excluded waters, as outlined above.
Despite this goal, as has been the case with nearly all previous efforts to redefine “waters of the United States,” regulatory uncertainty over the final rule and the reach of CWA jurisdiction is not likely to end anytime soon. Although the higher-profile proceeding in California has not resulted in a stay, that decision will be immediately appealed. The conflicting decision in Colorado as well as the potential for additional differing decisions emerging from the other district court challenges could continue to result in a new patchwork of CWA jurisdictional rules across the country.
Latham will continue to track and report on developments in this area.
[i] “The Navigable Waters Protection Rule: Definition of ‘Waters of the United States’,” 85 Fed. Reg. 22250 (Apr. 21, 2020).
[ii] Rapanos v. United States, 547 U.S. 715 (2006).
[iii] The current governing regime will remain in place in Colorado, i.e., the definition of WOTUS as it existed prior to the Obama Administration WOTUS rule, as modified by guidance under Solid Waste Agency of N. Cook Cty. (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) and Rapanos. See “Definition of ‘Waters of the United States’—Recodification of Pre-Existing Rules,” 84 Fed. Reg. 56626 (Oct. 22, 2019).
[iv] Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617 (2018).
[v] 85 Fed. Reg. at 22340.
[vi] Id. at 22277.