George S. Van Nest, BridgeTower Media Newswires
On Feb. 28, 2017, President Trump issued an executive order directing the U.S. Environmental Protection Agency (EPA) and the Corps of Engineers to review and rescind the 2015 “waters of the United States” rule that was issued under the Clean Water Act. The initial rule and repeal efforts are subject to extensive litigation nationwide at the federal District and Court of Appeal level where regulations and procedural steps have been challenged by various industry, agriculture, development groups and affected states.
The agencies decided to take a two-step process regarding the waters of the U.S. rule. Step one is the repeal of the 2015 rule and recodification of the regulation in place prior to 2015. Step two is a substantial analysis and revision of the definition of the water of the U.S. rule. On Dec. 11, 2018 the EPA and Corps took the second step by proposing a revised definition of “waters of the U.S.” to address federal jurisdiction under the Clean Water Act.
On Sept. 12, 2019, the EPA and Corps finalized a rule to repeal the 2015 Obama waters of the U.S. rule and re-codify the regulation that existed prior to the rule. Specifically, according to the assistant secretary of the Army for civil works the “final rule repeals the 2015 Rule and restores the previous regulatory regime exactly how it existed prior to finalization of the 2015 Rule.”
The final repeal rule is based on the agencies’ joint conclusion that there were multiple substantive and procedural errors with the 2015 rule. Based on decisions of multiple federal district courts, these include: failure of the rule to incorporate legal limits on the scope of the agencies’ authority under the CWA based on the statute and Supreme Court precedent; failure to recognize and preserve state authority in management of their own land and water resources; reaching the scope of agencies’ constitutional and statutory authority without clear congressional intent; and procedural errors and lack of record regarding the 2015 rule’s distance-based limits for covered waters.
Based on the adoption of the final rule, the EPA and Corps will implement the pre-2015 regulations in accordance with agency guidance and documents, as well as applicable Supreme Court decisions. The final rule was published on Oct. 22 and is effective on Dec. 23. The pre-2015 regulations are in place in more than half the states in the United States. The waters of the U.S. rule and regulatory revision process is the subject of extensive litigation in multiple federal courts. Due to litigation and stays issued by the courts, the 2015 rule applies in 22 states, the District of Columbia and United States territories.
As expected with major regulatory changes, there are further legal challenges to the repeal of the 2015 rule and re-implementation of the existing rule. On a litigation basis this has created a trail of litigation by numerous states, parties and interest groups spread across U.S. District courts. One striking issue is the parallel nature of the litigation, as there are challenges from all sides to both approaches. Hence, there are existing challenges to the Obama administration’s 2015 rule seeking repeal of the rule as over-reaching. Those cases are pending but may be wiped out by new lawsuits over the pre-2015 rule-making process and substantive regulations. Additionally, litigants in the first series of cases may need to preserve their cases and claims in the event that subsequent challenges to the Trump Administration repeal and revisions are wiped out. At the same time, an entire set of legal challenges exist at numerous federal district courts regarding the regulatory process by the new administration to repeal and replace the 2015 rule.
Based on the re-codification of the prior waters of the U.S. rule, the 1986/1988 definition applies to federal jurisdiction of waters and wetlands in the country. Notably, pursuant to the rule the term waters of the U.S. includes: all waters which are or were used in foreign or interstate commerce, or susceptible to such use; all interstate waters including interstate wetlands; all other intrastate waters, such as lakes, rivers, streams (even intermittent), mudflats, wetlands, sloughs, potholes where the use, degradation or destruction could affect commerce; tributaries of such waters; and wetlands adjacent to such waters.
Aside from finalizing repeal of the 2015 rule, the agencies are moving forward with step two of issuing the replacement rule that was proposed in December 2018. The agencies are reviewing public comments on the proposed 2018 waters of the U.S. rule. As was indicated in President Trump’s executive order, the revised rule was written in accordance with the plurality decision of Justice Scalia in Rapanos v. United States, 547 U.S. 715 (2006). Justice Scalia’s opinion, which is a basis for the new rule, provided that only waters which are relatively permanent, standing or continuously flowing and form geographic features that meet the common definition of “streams, oceans, rivers and lakes” qualify as waters of the United States under the Clean Water Act.
The proposed rule provides that Clean Water Act jurisdiction would apply to traditional navigable waters, tributaries to those waters, certain ditches, certain lakes, and ponds, impoundments of jurisdictional waters, and wetlands adjacent to jurisdictional waters would be federal regulated. It also identifies what do not constitute “waters of the United States” such as features that only contain water during or in response to rainfall (e.g. ephemeral features), groundwater, many ditches, including most roadside or farm ditches, prior converted cropland, stormwater control features, and waste treatment systems. The proposed rule defines tributary to include “a river, stream or similar naturally occurring surface water channel that contributes perennial or intermittent flow to a traditional navigable water or territorial sea in a typical year.”
Until step two is completed and the new rule defining wetlands is finalized the agencies will continue to implement the program under the 1986/1988 regulatory definition of waters of the U.S. The Clean Water Act “waters of the U.S.” rule is a far-reaching regulation that has a significant impact on U.S. business and residents that buy, sell, develop, farm and use property in proximity to waterbodies and wetlands. As the rule-making process proceeds, so will the multitude of litigation in federal courts challenging the repeal of the 2015 Obama waters of the U.S. rule and the proposed replacement by the Trump administration. Exactly which cases will remain after the regulations are finalized, the outcomes and whether any will make their way to the U.S. Supreme Court remains to be determined.
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George S. Van Nest is a partner in Underberg & Kessler LLP’s Litigation Practice Group and chair of the Firm’s Environmental Practice Group. He focuses his practice in the areas of environmental law, construction, and commercial litigation.
