‘Waters of the United States’ and ‘Navigable Waters Protection’ rules remain in flux, as EPA and Corps buy time to propose replacements

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On October 1, 2021, Judge Màrquez of the U.S. District Court for the District of Arizona granted the United States Environmental Protection Agency (EPA) and United States Department of the Army, Corps of Engineers (Corps) an extension until November 30, 2021 to make proposals for further proceedings concerning challenges to the 2020 regulatory definition of the “Waters of the United States” (WOTUS) and Navigable Waters Protection Rule (NWPR). The EPA and Corps requested the extension of time because they anticipate issuing proposed rules in the future and other Defendants plan on appealing the August 30, 2021 Order that has vacated the NWPR. 

With the granted extension, developers and industry should be aware that there currently is no date certain on when clarity as to what constitutes a WOTUS will be known and, perhaps more importantly, no imminent path to determine what rules and regulations under the Clean Water Act (CWA) are even in place. This messy situation unfortunately will make planning and operations more difficult in the near term. However, it is worth keeping in mind that the Corps will still issue Section 404 permits under the CWA when the analysis and propriety in doing so is straightforward. It is only when projects involve more difficult issues, such as impacts to intermittent creeks and ditches, where the battle over what is a WOTUS and a replacement of the NWPR is of primary importance. 

Background on WOTUS and NWPR

For projects involving creeks, ditches, ponds, and wetlands under the CWA, “[t]he Secretary [of the Corps] may issue permits . . . for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” 33 U.S.C. § 1344. Such permits typically must be obtained before construction or other work is performed.  Failure to obtain a required permit can lead to significant project delays and cost overruns and may include claims for civil and criminal penalties.

“Navigable waters” are defined as “the waters of the United States, including the territorial seas.” 33 U.S.C. §1362(7). While “navigable waters” is defined, “waters of the United States” is not defined, leaving presidential administrations from Nixon to Biden to wrestle with the scope and jurisdiction of the EPA and Corps in interpreting the meaning of “waters of the United States.”

In 2015, under the Obama Administration, the EPA and the Corps re-wrote and expanded the WOTUS Rule rule to include: (1) tributaries that have physical signs of flowing water, even if they don’t run all year round, and ditches that “look and act” like tributaries; (2) expanded EPA oversight to any body of water within 1,500 feet of another water body already covered by the rule; and (3) extended protections to regional water features, such as prairie potholes and coastal bays. This proved controversial. 28 states successfully sought injunctions to block enforcement of the 2015 WOTUS Rule in federal courts, reverting those states to pre-2015 WOTUS interpretations during the pendency of the lawsuits and leaving the remaining states subject to 2015 WOTUS Rule. See North Dakota v. EPA, 127 F. Supp. 3d 1047, 1051 (D.N.D. 2015); Texas v. EPA, 2018 U.S. Dist. LEXIS 160443, at *4 (S.D. Tex. Sept. 12, 2018); Georgia v. Pruitt, 326 F. Supp. 3d 1356 (S.D. Ga. 2018). 

In 2019 and 2020, the Trump administration repealed the 2015 WOTUS Rule and promulgated the NWPR, which significantly reduced the scope and oversight of the EPA and Corps in traditionally non-navigable waterways. To that end, the 2020 NWPR with the WOTUS definition clarified that only the following were “jurisdictional” and could be regulated under the CWA: 1) territorial seas and traditional navigable waters (e.g., oceans, rivers, streams); 2) perennial and intermittent tributaries that contribute surface water flow to traditional navigable waters (including ditches and other channels that relocate or are constructed in tributaries); and 3) certain lakes, ponds, and impoundments of jurisdictional waters (including lakes and ponds that are traditional navigable waters, contribute surface water flow to or are flooded by a traditional navigable water directly or through another jurisdictional water in a typical year).  Because of changes in the scope of what constituted a WOTUS, the 2020 NWPR eliminated the much debated and previously-required “significant nexus” to a navigable water according to Supreme Court jurisprudence as well.

August 2021 vacation of the NWPR

On August 30, 2021, the District of Arizona stunningly vacated the 2020 NWPR, finding that it had “fundamental, substantive flaws that cannot be cured without revising or replacing the NWPR's definition of 'waters of the United States.’” The Order allowed the EPA and Corps to replace the NWPR. Previously, President Biden’s Executive Order 13,990 directed the EPA and Corps “to immediately review and . . . take action to address the promulgation of Federal regulations and other actions during the last 4 years that conflict with these important national objectives.” As a result, pending an appeal, the 2020 NWPR is no longer in effect and raises questions as to what rules and regulatory definitions, if any, are in effect currently

Importantly, the August 30th Order did not address: 1) if the 2015 Obama WOTUS rule now is in effect; 2) if the injunctions in the cases brought by the 28 states challenging the 2015 Obama WOTUS rule are in effect or can be revived; 3) if prior Supreme Court jurisprudence once more prevails, such as in Rapanos v. United States, 547 U.S. 715 (2006); and 4) if the invalidation of the NWPR and WOTUS definition have nationwide application, and if not, in what states the vactur applies. Moreover, the defendants in the Arizona case, including business investors and residents, have represented that they plan to appeal the Order.  

Future planning and considerations 

Although the 2020 NWPR and accompanying WOTUS definition itself was hotly debated and subject to litigation, it temporarily did provide clarity for developers and industry. Determining whether proposed projects would impact WOTUS could be made with more certainty. That certainty, however, is gone.

In obtaining the extension to address the aftermath of the now-vacated 2020 NWPR, the EPA and Corps essentially have punted. A new WOTUS definition and rule, while currently being drafted and debated within the Biden Administration, will not be proposed until the end of 2021 at the earliest.  It is likely that clarity on which rule currently applies, and what the future substance of a new rule is to be, will not be known until 2022. The yet-to-be proposed new rule and definition, in turn, undoubtedly will be the subject of future legal challenges once adopted.

As a result, those affected by these developments, including the agricultural, manufacturing, and real estate development industries, should beware that there is currently no “right” answer as to which rules currently apply. Developers and industry should carefully consider how best to plan for and meet the ever-shifting landscape of legal requirements under the CWA if their projects do not involve straightforward legal applications of the CWA and the need or lack thereof for Section 404 permits is unclear. In other words, be careful out there.

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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