Proposed regulatory changes will increase the extent of lands throughout the country that will be designated, and regulated, as wetlands. On June 9, 2021, the Department of the Army and the Environmental Protection Agency (“EPA”) (together, “the Agencies”) announced their intent to replace the Trump administration’s Navigable Waters Protection Rule (“NWPR”). The Agencies intend to restore the protections in place prior to the Obama-era 2015 Clean Water Rule and establish a more “durable” definition of “waters of the United States.” This action follows President Joe Biden’s Executive Order 13990, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis (Jan. 20, 2021), which revoked the Trump administration’s executive order that resulted in the promulgation of the Trump administration’s NWPR and directed the Agencies to “take action to address . . . Federal regulations and other actions during the last four years that conflict with these important national objectives.”
The forthcoming rulemaking comes on the heels of the Trump administration’s repeal and replacement of the 2015 Clean Water Rule. In 2019, the Agencies published a final rule repealing the 2015 rule. EPA then promulgated the NWPR last year, 85 Fed. Reg. 22,250 (Apr. 21, 2020), effective June 22, 2020, narrowing the waters subject to Clean Water Act jurisdiction. The NWPR codified Justice Antonin Scalia’s plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006): “the phrase [‘the waters of the United States’] does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.” Id. at 739. The 2020 NWPR was subject to challenges across the country and resulted in a stay of the rule in Colorado, which was recently lifted in early March, 2021.
After reviewing the NWPR, the Agencies contend that its more limited definition of “waters of the United States” reduced clean water protections, particularly in arid western states. EPA noted in its press release that the 2020 NWPR resulted in a “25 percentage point reduction in determinations of waters that would otherwise be afforded protections.” Moreover, EPA highlighted that especially in arid states like Arizona and New Mexico, of the over 1,5000 streams assessed, all were found to be non-jurisdictional under the NWPR.
While the Agencies have yet to formally propose regulatory language replacing the 2020 NWPR, it is likely that any new regulation would expand the scope of waters subject to Clean Water Act protections and permitting obligations. The Agencies may choose an approach like the “significant nexus” framework explicated in Justice Anthony Kennedy’s concurring opinion in Rapanos and codified in the 2015 Clean Water Rule. See Rapanos, 547 U.S. at 779-80 (noting that waters are jurisdictional if they possesses a “significant nexus” with “waters of the United States.”). Or the Agencies may create an altogether new approach based on experience promulgating and administering various definitions of the term over the past several years. In the meantime, EPA will apply its 1986 regulations and 2007 and 2008 Rapanos guidance documents while the Agencies develop the rule and proceed with the rulemaking process.
This development has significant implications for water quality stakeholders across the country, including for new infrastructure, real estate developers, utilities, mining operations and energy projects. This development is noteworthy for several reasons:
- If history is any guide, repeal or revision of the NWPR will be subject to challenges and stays. And while the Agencies intend to create a “more durable” rule, absent additional congressional action, any new rule will also yield extensive legal challenges, creating yet another patchwork of rules defining “waters of the United States” and risking continued fracturing of Section 404 implementation across the country.
- When the Agencies revert to the 1986 regulations and 2007 and 2008 Rapanos guidance documents, there may be uncertainty over the validity of jurisdictional determinations issued since April 2021, based on the NWPR.
- Regardless of federal jurisdiction established by “waters of the United States,” states may define jurisdiction in a more expansive manner and can take enforcement actions against unauthorized discharges into such waters. For instance, Colorado’s recent attempts to create a state dredge and fill permitting program illustrated the state’s willingness to pursue enforcement actions against discharges in waters previously regulated by the Agencies.
- Colorado’s recent efforts to legislatively create a state dredge and fill permitting program will likely conclude. Other states that have recently adopted state dredge and fill programs, like California, may modify or rescind the programs.
The debate over the meaning of “waters of the United States” continues, and developments in this area will have significant impacts on stakeholders for years to come.