EPA AND ACOE ISSUE NEW “WATERS OF THE UNITED STATES” RULE FOR CLEAN WATER ACT JURISDICTION

In April 2020, two days before the U.S. Supreme Court issued its decision in County of Maui v. Hawaii Wildlife Fund, the United States Environmental Protection Agency (EPA) and the Department of the Army, Corps of Engineers (ACOE), published the Navigable Waters Protection Rule redefining the scope of waters subject to federal regulation under the Clean Water Act (Act or CWA).

The Act, which prohibits the discharge of any pollutant into “navigable waters” without a permit from the EPA under the National Pollutant Discharge Elimination System (NPDES) and the discharge of dredge or fill material into “navigable waters” without a permit from the ACOE under the Act’s Section 404 permit program, defines “navigable waters” as “the waters of the United States, including the territorial seas.” Although the Supreme Court has consistently held that the CWA’s jurisdiction extends beyond waters that are actually navigable, a clear definition of “waters of the United States” (WOTUS) has eluded lower courts and federal regulators since the Supreme Court decided Rapanos v. United States in 2006. In Rapanos, a plurality opinion by Justice Antonin Scalia interpreted WOTUS to cover relatively permanent or continuously flowing bodies of water connected to traditional navigable waters, as well as adjacent wetlands with a continuous surface water connection to these waters. Although concurring in the ultimate decision, Justice Anthony Kennedy wrote a separate opinion with a different interpretation of WOTUS, covering any wetlands that have a “significant nexus” with traditionally navigable waters. The 4-1-4 decision did not establish a clear precedent for the WOTUS definition.

In June 2015, the Obama Administration published the Clean Water Rule to clarify the WOTUS definition after questions arose over the government’s authority when confusion around the WOTUS definition stalled CWA enforcement actions. The Clean Water Rule looked to the Act’s objective “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” and adopted Justice Kennedy’s “significant nexus” standard to implement this objective. The rule thus covered any waters that, either alone or in combination with similarly situated waters in the region, significantly affected the chemical, physical, or biological integrity of traditional navigable waters. It established six categories of waters that were jurisdictional by rule; specified waters that were excluded from CWA jurisdiction; and identified two categories of waters (similarly-situated regional waters and floodplain waters) that could be subjected to a case-specific significant nexus jurisdiction analysis.

The new Navigable Waters Protection Rule replaces the Clean Water Rule and, in doing so, shifts the emphasis of the WOTUS definition more in line with Justice Scalia’s plurality opinion in Rapanos. Under the new rule, jurisdictional waters “encompass 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 new rule establishes four categories of jurisdictional waters: (1) the territorial seas and traditional navigable waters; (2) perennial and intermittent tributaries that contribute surface water flow to such waters; (3) certain lakes, ponds, and impoundments of jurisdictional waters; and (4) wetlands adjacent to other jurisdictional waters. All other waters or features are excluded from CWA jurisdiction.

This new rule will have the effect of further muddying the waters of CWA jurisdiction as the regulatory pendulum swings back once again, risking further confusion in an area where consistency and predictability are key. As the new rule reduces the Act’s reach over the nation’s waters, it is expected that it will also reduce the number of permits required under the NPDES and Section 404 permit programs. There are five lawsuits currently in federal court which are challenging the Navigable Waters Protection Rule, including a lawsuit in Massachusetts federal court.

We will continue to monitor judicial and administrative developments under the CWA as courts, the EPA, and the ACOE apply this new rule. For any questions regarding this evolving area of the law, please reach out to the attorneys at Mackie Shea Durning, PC.

By Peter M. Vetere