Waters of the United States, 2021/2022 Edition, Part I

This is the first of of a two-part post. Part II is available here.

Last week, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers announced that the regulations defining “waters of the United States” under the Federal Water Pollution Control Act (better known as the Clean Water Act) are once again going to change.

The importance of that announcement is best demonstrated through a quick recap of the chaos that has dominated this element of Clean Water Act jurisdiction. In the 1980s, the EPA and Army Corps finally agreed on a regulatory definition of “waters of the United States,” a phrase that Congress had used in its 1972 overhaul of the Federal Water Pollution Control Act to define “navigable waters.” The phrase is also one of the key jurisdictional terms defining the waters to which the restructured law applies.

“Waters of the United States” indicates that jurisdictional waters are broader than the traditional navigable waters — that is, waters that are navigable in fact or subject to the ebb and flow of the tide. Moreover, in 1985, in United States v. Riverside Bayview Homes, the U.S. Supreme Court unanimously upheld the Act’s application to wetlands that are adjacent to navigable waters, inspiring the EPA and Army Corps to define “waters of the United States” based on Commerce Clause limits to federal jurisdiction. In the 21st century, however, the Court pulled back from such an expansive view of the agencies’ jurisdiction. In 2001, in Solid Waste Agency of Northern Cook County v. U.S. Corps of Engineers, it held, 5-4, that the Clean Water Act does not extend to “isolated” waters that have no hydrological connection to traditional navigable waters.

But the chaos didn’t really begin until the Court’s 2006 fractured non-decision in Rapanos v. United States, in which Justice Scalia’s four-Justice plurality offered a fairly narrow surface water connection test, Justice Kennedy offered a significant nexus test, and Justice Stevens and three other dissenters objected to both tests but concluded that jurisdiction existed if either test were met. A circuit split followed, dividing the country among regions such as the Seventh and Eleventh Circuits that follow only Justice Kennedy’s significant nexus test, those such as the Sixth and probably Ninth Circuits that follow the dissent’s either/or approach, and those that have not yet decided. No circuit followed Justice Scalia’s plurality alone.

Rulemaking to revise the definition of “waters of the United States” eventually occurred. The Obama-era EPA and Army Corps proposed their definition on April 12, 2014, and received over one million comments in response. The final rule, published August 28, 2015, focused on Justice Kennedy’s “significant nexus” test and was supported by a 400-page peer-reviewed scientific report. That report was lost in the ensuing litigation, which required the Supreme Court to establish in 2018 that the rule needed to be challenged in the U.S. District Courts and resulted in multiple district court decisions binding different constellations of states to stays and invalidations — with some states then asking to be released from decisions that they had technically “won.” It is emblematic of the chaos that by the end of July 2019, even the EPA and Army Corps weren’t sure which rule applied in New Mexico.

Less than two months later, however, the Trump administration repealed the 2015 “waters of the United States” rule. Despite litigation challenging the repeal, the country defaulted back to the post-Rapanos circuit split until June 22, 2020, when the Navigable Waters Protection Rule went into effect everywhere but Colorado. On June 19, the U.S. District Court for the District of Colorado had preliminarily enjoined the rule from taking effect, but on March 2, 2021, the U.S. Court of Appeals for the Tenth Circuit reversed the injunction. See Colorado v. U.S. Environmental Protection Agency, 445 F. Supp. 3d 1295 (D. Colo. 2020), rev’d, 989 F.3d 874 (10th Cir. 2021).

Thus, for the moment, the entire country is subject to the 2020 Navigable Waters Protection Rule, which is based on Justice Scalia’s surface water connection test from Rapanos.

The benefits of restored national Clean Water Act uniformity, however, are outweighed by increasing evidence that the Navigable Waters Protection Rule doesn’t protect much beyond traditionally navigable waters. In March 2021, for example, E&E News reported, based on data obtained from the Army Corps, that “[t]he agency reviewed 55,519 waters and water features since the Navigable Waters Protection Rule took effect in June under the Trump administration. Of those, more than 40,000 did not qualify for federal protection under the Clean Water Act.” In the same week, the plaintiffs in South Carolina Coastal Conservation League v. Regan, No. 2:20-cv-01687-BHH (D.S.C.), moved to lift the stay in their challenge to the Navigable Waters Protection Rule, arguing based on the EPA’s jurisdictional determination database that under the 2020 rule, the agencies were disclaiming jurisdiction in 91 percent of the requested jurisdictional determinations, compared to 58 percent under the 2015 and 1980s “waters of the United States” regulations. (NOTE: On June 14, 2021, this database indicated that out of a total of 14,214 jurisdictional determinations, only 1,120 waters were deemed subject to the Clean Water Act.) Research published in Science in April 2021 also indicates that the rule leaves much interstate water pollution unregulated. The EPA and Army Corps confirmed this contraction of Clean Water Act jurisdiction in their June 9 announcement, noting that:

Upon review of the Navigable Waters Protection Rule, the agencies have determined that the rule is significantly reducing clean water protections. The lack of protections is particularly significant in arid states, like New Mexico and Arizona, where nearly every one of over 1,500 streams assessed has been found to be non-jurisdictional. The agencies are also aware of 333 projects that would have required Section 404 permitting prior to the Navigable Waters Protection Rule, but no longer do.

Given this change in the regulatory status quo, it was entirely appropriate for President Biden to highlight the Navigable Waters Protection Rule for review on his first day in office through his Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. Read carefully, moreover, the agencies’ June 9 announcement indicates that they will follow the same two-step process as the prior administration — a fairly immediate repeal of the 2020 rule (and, presumably, a return to the post-Rapanos split regarding application of the 1980s regulations), followed by a new rule at a somewhat later date.

Good. The agencies should take some time to rethink the regulations. The 1980s regulations have already been modified (albeit unclearly) by the Supreme Court. The 2015 rule, in addition to generating much litigation, had some vulnerabilities, especially regarding its treatment of floodplains and “adjacent” waters. The 2020 rule is based on the Rapanos test that no circuit court adopted as the sole test. Both rules categorically excluded groundwater as a “water of the United States,” an exclusion that the U.S. Supreme Court’s August 2020 decision in County of Maui v. Hawaii Wildlife Fund pretty much destroys.

There is no possibility that whatever rule the Biden administration’s EPA and Army Corps eventually come up with will escape litigation. Nor, given the Rapanos split and subsequent changes to the Supreme Court Justices, is it possible to fully predict how much deference the agencies will receive or how the Court might continue to tweak “navigable waters.” Nevertheless, three approaches might help the agencies considerably, and I'll touch on those in Part II of this post.