‘Waters of the US’ would alter environmental reg as we know it

The scope of the Clean Water Act has been the subject of dispute beginning with its enactment in 1972.

After three seminal and other Supreme Court decisions, hundreds of appellate and district court cases and stops and starts by the U.S. Environmental Protection Agency and Army Corps of Engineers to fashion regulations to both reflect congressional intent and seek practical implementation of the act, the Trump administration has now proposed a regulation that will drastically curtail the reach of that law.

{mosads}The touchstones of the proposed regulation — basing jurisdiction on direct connections to actual navigable waters and giving substantial deference to traditional state power over land use — serve to unravel regulations put in place during the Obama administration.

This implicates not only what “waters” can be subject to federal regulation, but also affects other laws, such as the Endangered Species Act.

At issue is the definition of “waters of the United States,” which, in turn, under the Clean Water Act, defines “navigable waters.” It is only those waters that are subject to Clean Water Act regulation.

Courts and the agencies interpreting the scope of the act during its first few decades routinely considered that Congress intended broad federal authority, under its Commerce Clause powers, in regulating waters and avoided defining “navigable” under a narrower, more traditional meaning.

However, the Supreme Court, after a more expansive 1985 ruling in United States v. Riverside Bayview Homes, began to limit federal reach under the act, first with Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) in 2001 and then Rapanos v. United States in 2006.

In SWANCC, a 5-4 majority of the court held that for there to be federal authority under the Clean Water Act, there needed to be some link between the water sought to be regulated and traditional navigation. 

A four-member plurality in Rapanos, authored by Justice Antonin Scalia, would have further constrained that authority, although it was Justice Anthony Kennedy’s concurring opinion in Rapanos, which suggested that there must be a “significant nexus” between the water and a traditionally navigable water, in view of ecological connections, that would form the basis of federal jurisdiction over those non-navigable waters. 

In 2015, the Obama administration finalized regulations that sought to give effect to Justice Kennedy’s “significant nexus” standard. Those regulations, which are quite complicated, have been the subject of various lawsuits, a Supreme Court decision, a spate of regulatory efforts and is presently stayed in some states, but applicable in others, and confusion reigns. 

In the middle of all of that, one of President Trump’s early executive orders was to vacate the Obama 2015 rule and order EPA and the corps to develop a new regulation that tracked the Scalia plurality opinion in Rapanos, even though under Supreme Court precedent most courts have held that the Kennedy concurrence was the controlling opinion from that case.

The regulation now being proposed is noteworthy in many ways. Although the Scalia plurality in Rapanos is not generally considered controlling, the proposed regulation relies heavily on that opinion.

In addition, it establishes the parameters of federal authority to be within waters that are, or have direct connections to, traditionally navigable waters, to such an extent that even interstate waters, which had never been questioned as being outside of the scope of the Clean Water Act, will not be subject to regulation unless that water is itself navigable, or is directly connected to a navigable-in-fact water.

“Ephemeral” streams and other waters, which rely on precipitation events for their flows, and are particularly prevalent in the western United States, would no longer be subject to Clean Water Act regulation.

A “mere” hydrological connection between a tributary or wetland and a navigable water is no longer sufficient to permit federal regulation of that tributary or wetland. 

For an “adjacent” wetland to be jurisdictional, it must abut, i.e., touch “at least one point or side of a jurisdictional water” or have a direct hydrological surface connection.

Hydrological connections through groundwater, which both the Fourth and Ninth Circuits have recently suggested could maintain jurisdiction, would be outside of the scope of the act. It is not an overstatement to conclude that the regulation, as proposed, would appreciably reduce the waters subject to federal regulation.

At the same time, the Endangered Species Act (ESA) would be a victim of the proposed regulation as well. Under the ESA, a federal agency must “consult” with, depending on the species at issue, the Fish and Wildlife Service or National Marine Fisheries Services if the agency’s action “may affect” a listed species or critical habitat.

Those consultations typically result in measures required to protect the species or habitat. It is very common that the corps’ “action” in issuing a Clean Water Act section 404 wetland fill permit triggers this ESA consultation requirement.

To the extent that the proposed regulation substantially reduces the number of wetlands and other waters that would have otherwise required a corps permit, the number of ESA consultations will be reduced as well.

{mossecondads}EPA and the corps, in proposing this “Waters of the United States” regulation, state that they are doing so to make the Clean Water Act “easier to implement.” By limiting the waters covered under the act, and doing away with the breadth and complexities of the 2015 rule, that goal would be achieved.

However, as over 1 million comments were received when the 2015 rule was first proposed, it can be expected that the proposed rule will generate at least that level of interest, and likely more. And whatever the final rule looks like, litigation from all sides is assured.

On top of that, this regulation would not affect a state’s ability to regulate its “waters of the state.” So, although the regulation as proposed may not be very complicated, the fate of that regulation, and how a discharger will balance state and federal requirements, is anything but! 

Joshua A. Bloom is a principal at Meyers Nave in the firm’s land use and environmental law practice groups.