Environmental Groups Challenge Navigable Waters Protection Rule

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Morgan Lewis

Multiple environmental groups, including the Natural Resources Defense Council, the Conservation Law Foundation, and Defenders of Wildlife, have sued the US Environmental Protection Agency and US Army Corps of Engineers over the agencies’ new definition of waters of the United States.

The next chapter in the continuing saga of how to define “waters of the United States,” which determines the reach of the Clean Water Act, has started with the filing of three separate lawsuits by environmental groups challenging the US Environmental Protection Agency (EPA) and US Army Corps of Engineers’ April 21 Navigable Waters Protection Rule. The rule rolls back the Obama-era definition of waters of the United States, introducing a narrower definition. The environmental groups argue that the agencies’ line-drawing between federally regulated waters and nonregulated waters is arbitrary and contrary to the weight of science. The suits also allege that the agencies adopted the rule without properly considering the impact that the rule would have on the “integrity of the Nation’s waters.”

The Natural Resources Defense Council, the Conservation Law Foundation, and multiple state environmental groups filed suit in the US District Court for the District of Massachusetts on April 29, the same day the South Carolina Coastal Conservation League, Defenders of Wildlife, and other organizations filed suit in the US District Court for the District of South Carolina. Separately, the Chesapeake Bay Foundation and Shorerivers filed suit in the US District Court for the District of Maryland on April 27. All three suits challenge the definition of waters of the United States under the Navigable Waters Protection Rule.

Background

The Clean Water Act is a comprehensive water protection statute designed to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. The act prohibits the discharge of pollutants into navigable waters without a permit, and defines navigable waters as the waters of the United States, including territorial seas. However, the act does not provide a definition of “waters of the United States,” which has caused longstanding confusion and led to decades of litigation over what waters are covered by the act. In the wake of the fractured US Supreme Court decision in Rapanos v. United States, the agencies issued the 2015 Clean Water Rule, which finalized a definition of waters of the United States.

Thirty-one states and a number of agricultural and other groups subsequently challenged the rule, raising a variety of issues including claims that there were numerous procedural deficiencies in the rulemaking process, and that the rule was too expansive and infringed on private property rights and state sovereignty. Various courts across the country issued a series of injunctions barring application of the rule.

Following Executive Order 13778 issued by US President Donald Trump in 2017 directing EPA and the Corps of Engineers to review the 2015 Clean Water Rule, in 2019 the agencies repealed the 2015 rule and reinstated the preexisting regulations (the 1986 guidelines). The agencies announced that the 1986 guidelines would remain in effect until the publication of a new rule. At this time, challenges to the repeal of the 2015 rule are pending in six district courts.

The New Rule

On April 21, EPA finalized a new definition of “waters of the United States” under the Clean Water Act. The new rule limits the definition of waters of the United States to four categories of jurisdictional waters:

  1. Traditional navigable waters and the territorial sea
  2. Perennial and intermittent tributaries flowing into those waters
  3. Wetlands adjacent to those waters
  4. Certain lakes, ponds, and impoundments of jurisdictional waters

The rule specifically excludes multiple categories of waters from the act, including groundwater, wetlands adjacent to other wetlands, and ephemeral streams and pools.

In finalizing the rule, the agencies stated that it would bring predictability and clarity to a process that has been mired in complex litigation for decades. The agencies stated that they based the rule on the text and structure of the Clean Water Act, informed by legislative history and Supreme Court decisions, agency expertise, and scientific evidence.

The agencies believe that the definition draws an appropriate line between federal and state waters and “carries out Congress’[s] overall objective to restore and maintain the integrity of the nation[’s] water in a manner that preserves the traditional sovereignty of States over their land and water resources.” 85 Fed. Reg. 22,252.

The Lawsuits

The environmental groups claim that the new rule violates the Clean Water Act and the Administrative Procedure Act in numerous ways. They allege that the new rule adopts an unreasonably narrow interpretation of the Clean Water Act and is a significant and unprecedented rollback of the protections required under the act. The groups claim that the new rule will result in the elimination of federal protections of a substantial number of aquatic resources that are critically important to downstream water quality.

The groups say that such a reduction in coverage violates the clear mandate of the Clean Water Act to protect the integrity of the nation’s waters. The groups argue that the new rule ignores the biological and chemical connections between water bodies and will make it impossible to maintain and restore the nation’s waters, the primary purpose of the Clean Water Act.

The groups also allege that the agencies failed to articulate a reasonable explanation for their decision to reverse decades of agency policy regarding the definition, a decision that they say is not supported by—and is in fact contrary to—the weight of available scientific evidence. Additionally, the groups argue that EPA published a new economic analysis supporting the rule change concurrent with the new final rule, when it should have been provided during the notice and comment period.

Finally, the groups heavily criticize the process under which the new rule was developed. The groups first note that the agencies repealed the 2015 Clean Water Rule without any substantive reevaluation of the rule, and allege that the president’s 2017 executive order in fact dictated the decision. Accordingly, the decision was predetermined and made without any public input, a violation of the Administrative Procedure Act.

Additionally, the groups allege that the agencies framed the repeal in a way that limited public comment on whether repeal was appropriate. The groups further purport that both the repeal and the new rule fail to acknowledge the well-developed record supporting the 2015 Clean Water Rule, including the 1 million public comments in support of the 2015 rule.

Implications

Absent any action from the courts, the new rule will become effective on June 22, 2020. It is anticipated that the scope of federal jurisdiction over waterways will be significantly altered by this rule if it is allowed to go in effect. How the courts will weigh a request for preliminary injunction is likely to turn largely on how they view the merits of the challenge.

Based on the most recent round of litigation, it appears that a court would be unlikely to allow such an impactful rule to go into effect if it believes that there is a meritorious challenge pending. In any event, we anticipate that there will be years of litigation before there is an established and accepted definition for waters of the United States.

Law clerk Ryan Hoyler contributed to this LawFlash.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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