Previously, we reported the Federal Circuit split (Part 1) regarding indirect discharges to navigable waters through groundwater and the Supreme Court’s grant of certiorari in one of those cases (Part 2), which will hopefully settle whether the Clean Water Act (“CWA” or the “Act”) governs an indirect discharge to navigable waters. Whether the CWA applies to particular surface waters remains a hot topic almost 50 years since the modern-day CWA was passed in 1972, as the litigation continues over the Obama Administration’s rule (promulgated in 2015) defining the scope of the CWA, as well as the Trump Administration’s attempts to repeal that rule.  

Recently, the Trump administration proposed a new rule to replace the 2015 rule.  This proposed rule is marked by significant changes in how the scope of the CWA is interpreted and eliminates those significant nexus-related provisions in the 2015 rule that made the rule so amorphous that it could reach the vast majority of surface waters, leaving little for States to regulate under their own authority. Given how defining the scope of the CWA determines whether certain activities will require a permit, the final rule will undoubtedly be challenged when it issues.  But the final form of the rule is far from certain. The comment period is ending soon (April 15!) and the final rule may change based on what the agencies hear from the regulated community during the comment period.

Defining WOTUS: Background

The CWA’s jurisdiction extends to “navigable waters” through its prohibition against the discharge of pollutants into such waters. The Act defines navigable waters as the “waters of the United States” (“WOTUS”). The U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps”) have jurisdiction over discharges to the WOTUS, and can authorize and regulate such discharges through an appropriate permit. If the receiving water is not a WOTUS, then the EPA and Corps lack jurisdiction under the CWA to require a permit or regulate such activities.

The term “navigable waters,” and its definition as the WOTUS, were passed as part of the CWA in 1972. This was later defined through promulgation of regulations in the 1980s, which defined WOTUS to include waters that are navigable in fact; waters that are used in interstate commerce; and other waters the use, degradation, or destruction of which would affect interstate commerce, including wetlands adjacent to such waters. As the agencies interpreted the scope of the CWA with ever increasing breadth, the U.S. Supreme Court stepped in and reigned in the agencies.  Those cases have been pivotal in defining what is within and what lies beyond the agencies’ jurisdiction.

In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), the Supreme Court held that the use of ‘‘isolated’’ non-navigable intrastate ponds by migratory birds was not by itself a sufficient basis for the exercise of federal regulatory authority under the CWA. 531 US 159, 160 (2001). Five years later, in Rapanos v. United States, a plurality of the Supreme Court noted that the term ‘‘waters of the United States’’ covered ‘‘relatively permanent, standing or continuously flowing bodies of water’’ that are connected to traditional navigable waters, as well as wetlands with a ‘‘continuous surface connection’’ to such water bodies. 547 U.S. 715, 739, 742 (2006) (Scalia, J., plurality opinion). The Court noted that ‘‘relatively permanent’’ waters did ‘‘not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought,’’ or ‘‘seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months . . .’’ Id. at 732 n.5 (emphasis in original). Justice Kennedy, in a concurring opinion, concluded the appropriate jurisdictional test is whether the water possesses a ‘‘‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.’’ Id. at 759 (Kennedy, J., concurring).

In 2015, the Obama Administration promulgated the expansive “Clean Water Rule: Definition of ‘Waters of the United States’” rule (the “CWR”). (80 FR 37054, June 29, 2015). In defining “neighboring” for purposes of “adjacent” waters, the CWR reached as far out as 1,500 feet from the ordinary high water mark (“OHWM”) of and falling within the floodplain of traditionally jurisdictional waters.  But the rule also provided for case -by-case “significant nexus” determinations for waters up to 4,000 feet away from the OHWM of traditionally jurisdictional waters and those within the 100 year floodplain of certain jurisdictional waters regardless of distance from the OHWM.  Notably, the “significant nexus” determinations could be premised on any one of nine functions, which were described in such a way as to apply, essentially, to all water bodies.

Not surprisingly, the CWR was perceived as unduly interfering with the regulatory power left to the States by Congress and opposed as an unconstitutional extension of the law passed under Congress’s commerce power as. Consequently, many States (and others) filed suit against the CWR, and injunctions issued against the CWR’s enforcement in their states.

In 2017, the Trump Administration weighed in, promulgating a rule suspending the CWR. This “suspension rule” entailed suspending the effective date of the CWR for a period of time, giving the administration time to propose and finalize a new rule which would ultimately repeal the CWR. However, in S.C. Coastal Conservation League v. Pruitt, a federal district court entered a nationwide injunction against the suspension rule for violation of the Administrative Procedure Act. 318 F. Supp. 3d 959, 969-70 (D.S.C. 2018). This put the CWR rule, and any injunctions against it, back into effect. Currently, the CWR is only in effect in 22 States; the pre-2015 rule is in effect in the other 28 States. The CWR litigation is ongoing.

The New Proposed WOTUS Definition

The Trump Administration, through the EPA and Corps, announced its new regulatory definition for WOTUS on December 11, 2018. Shortly after the government shutdown ended earlier this year, the proposed rule appeared in the February 14, 2019, Federal Register and EPA held a public hearing in Kansas City, Kansas, on February 27th and 28th. The comment period is currently open and ends April 15, 2019. Comments can be submitted on the proposal’s regulations.gov page.

Much like the CWR, the new rule is said to be intended to clarify the limits of the CWA’s authority.  Unlike the CWR, the new rule streamlines rather than adds categories of waters. Also, whether waters are jurisdictional will now be based on the degree of their contribution to traditional navigable waters, rather than on arbitrary distances from jurisdictional waters without regard to their contribution (or any connection) to those waters. The elimination of the case-by-case “significant nexus” determinations alone should go a long way towards reducing the significant ambiguity and uncertainty that the regulated community faced with the CWR.  The rule codifies just six categories that are to be regulated under the CWA and specifically excludes from CWA jurisdiction water bodies that do not fall within one of those six categories, which is not to say that it wouldn’t be regulated under a different federal statute or a state law.

As a rough upshot, the most significant proposed changes to the 2015 rule include the following:

• Eliminating case-by-case “significant nexus” determinations, which are replaced with a more rigorous definitions section that includes significant terms like “perennial” and “intermittent” and provides temporal context for the evaluation of such flows;
• Eliminating jurisdictional claims over (and, therefore, the need for NPDES and 404 permits for activities entailing discharges to) water bodies contributing only ephemeral flows to traditional navigable waters;
• Retaining jurisdiction over impoundments of jurisdictional waters “unless jurisdiction has been affirmatively relinquished,” as noted in the preamble to the proposed rule (but not included in the proposed codifications); and
• Limiting the definition of “adjacent wetlands” to those abutting or having a direct surface connection to other jurisdictional waters, requiring inundation or perennial or intermittent flow between the wetland and the jurisdictional water during a typical year.

This proposed rule has been met with mixed reactions. Some believe the rule provides a heightened level of clarity and certainty in determining whether a discharge requires a permit. Some also believe its reduction the CWA’s jurisdiction puts to the CWA’s authority back within the Commerce Clause, shifting some regulatory power back to the States. Others, however, believe this reduction in the CWA’s jurisdiction removes necessary protections for waters all around the US but particularly in arid and semi-arid regions of the West and Southwest where most streams are ephemeral.

Conclusion: Evaluate & Comment ASAP

The current comment period gives businesses, individuals, and others the opportunity to weigh in and help fashion a final rule that will effectuate the purposes of the CWA while limiting federal regulation of activities and waters that are the domain of the States. The preamble to the proposed rule provides the rationale for some of the proposed revisions and invites comments on both these changes and other approaches that may have significant, if unintended, consequences.

If you have not already done so, take time to review the proposed rule and preamble and consider how it might affect your business.  If you expect the rule to impact your business operations, consider submitting comments (directly or through an industry association) on the proposed changes and alternatives discussed in the preamble, even if your comments are merely to signal your support for particular changes or urge rejection of alternatives discussed in the preamble – be sure to include reasons for supporting or opposing these changes and alternatives.