Navigating the “waters of the United States”

In 2015, the EPA amended and significantly expanded the definition of navigable waters, much to the concern of farmers, ranchers, and business owners.²In response to this expansion, many entities challenged the amended rule. The 6th Circuit Court of Appeals blocked the rule based on its legal flaws and the harm it threatened to cause, resulting in a failure to implement the rule nationwide.²

Following this decision, the Supreme Court determined that the court of appeal does not have original jurisdiction to review challenges to the 2015 rule and that federal district courts should maintain that power.² However, the result of this case meant that the stay implemented by the 6th Circuit Court of Appeals would be lifted. To combat this, the EPA and Department of the Army finalized an “Applicability Date Rule” which delayed implementation of the 2015 rule until 2020.⁴This delay allows the agencies time to amend or replace the 2015 rule.⁴

Most recently, however, the South Carolina district court reinstated the 2015 rule after finding that the Trump administration failed to comply with rulemaking requirements under the Administrative Procedure Act.³ Specifically, the court states that the government failed to provide “reasoned analysis” for suspending the rule and no “meaningful opportunity” for public comment.³The court enjoined the suspension rule nationwide, but two federal courts have blocked implementation. The 2015 rule will now take effect in 26 states.^3,5

So what does this all mean? Well, in the 26 states where the 2015 rule applies, the definition of “waters of the United States” has expanded to cover not just navigable waters but any wetlands adjacent to navigable waters.⁴This has caused a great deal of regulatory uncertainty for farmers, ranchers, and businesses. The ambiguity in the rule creates issues in knowing what waters are subject to regulation and what waters are not. Without further clarification, this rule will not be an effective way in which to achieve the EPA’s goals of maintaining clean water.  Stay tuned, the Law Group will follow this matter and update our blog as agency interpretations, case law, and other guidance become available.

 

¹Water Advocacy Coalition, Short Summary of WOTUS Rule, April 2014, https://www.nssga.org/wp-content/uploads/2014/01/WAC-Rule-Summary-4-2014.pdf.

American Farm Bureau Association, Clean Water Act, WOTUS, June 28, 2018, https://www.fb.org/issues/regulatory-reform/clean-water-act/.

³Carol Dumas, Court Reinstates Suspended WOTUS Rule, Aug. 17, 2018, http://www.capitalpress.com/Water/20180817/court-reinstates-suspended-wotus-rule.

⁴Environmental Protection Agency, Definition of Waters of the United States Under the Clean Water Act, Nov. 20, 2017, https://www.epa.gov/cwa-404/definition-waters-united-states-under-clean-water-act.

⁵26 states include: California, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia and Washington. Ariel Wittenburg, Judge Shifts Legal Brawl, Revives WOTUS in 26 States, Aug. 16, 2018, https://www.eenews.net/stories/1060094329.