It was clear to everyone, including this humble blogger, that EPA's new rule defining Waters of the United States (WOTUS) would bring little certainty to this fraught area of law. The rule took effect June 22, 2020, but court challenges were already underway, and already we have conflicting rulings.
A federal judge in California declined to enjoin implementation of the rule, holding that in view of ambiguous Supreme Court guidance, the government is free to reinterpret WOTUS. The opposite conclusion was reached by a federal judge in Colorado, who stayed implementation of the rule in that state.
The underlying issue is the scope of jurisdiction under the Clean Water Act (CWA), which Congress unhelpfully said is limited to "waters of the United States, including the territorial seas." The Act contains no further definition, and federal agencies and courts have struggled since the law's passage to put sideboards around CWA jurisdiction.
In 2006, a fractured Supreme Court in Rapanos v. U. S. produced different conceptions of WOTUS but no majority opinion. Justice Scalia writing for the plurality offered a narrow jurisdictional scope, whereas Justice Kennedy's concurring opinion took a more nuanced approach under which more waters would be subject to regulation.
In 2015, after the Obama Administration promulgated a WOTUS definition that took the Kennedy approach, judicial challenges resulted in a slew of different outcomes around the country. The Trump Administration rescinded the 2015 rule and replaced it with one that tracks Scalia's approach. That is the rule under consideration by the California and Colorado District Courts and no doubt in many cases to come.
Regardless of what ultimately emerges from this morass, recall that the states have authority of their own and that is probably where practitioners should be focusing in advising clients. On the same day the WOTUS rule came into effect, the Oregon Department of Environmental Quality (ODEQ) issued a statement including a not too subtle warning about discharging pollutants into state waters without benefit of a permit.
The ODEQ statement also speaks to state authority under CWA section 401, the subject of another recent EPA rulemaking, and a continuing source of litigation and uncertainty. The statement encourages project proponents to meet with ODEQ early for an evaluation of a "project plan." Such pre-application meetings are always a good idea—better to anticipate and address issues before they become controversial.
All of this is pretty interesting for lawyers but frustrating, time-consuming and expensive for clients trying to discern a critical path for development projects. Surely there is a better approach to ensuring clean water, but it is hard to see one emerging soon.
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