On August 30, 2021, the Honorable Rosemary Márquez of the United States District Court for the District of Arizona vacated and remanded “The Navigable Waters Protection Rule: Definition of ‘Waters of the United States,’” 85 Fed. Reg. 22, 250 (April 21, 2020) (NWPR). The effect of the order is a universal injunction against applying the NWPR when determining which waters qualify for federal protection under the Clean Water Act (CWA), reverting the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) to making jurisdictional determinations consistent with the Supreme Court’s decision in Rapanos v. United States, 547 U.S. 715 (2006) until the EPA and the Corps publish a new jurisdictional definition of “waters of the United States” (WOTUS).
The CWA protects the nation’s waters through a variety of mechanisms including controls on water quality standards and restricting the discharge of pollutants through the National Pollutant Discharge Elimination System (NPDES). However, these mechanisms are not applicable to all of the nation’s waters because the CWA’s jurisdiction only reaches “navigable waters.” Navigable waters is defined in the CWA as “waters of the United States, including the territorial seas” but neither of these terms is particularly clear, leaving the jurisdiction of the CWA contested and unpredictable.
The EPA and the Corps have issued several guidance documents that define WOTUS over the years, culminating with the adoption of the reasoning from Rapanos. However, Rapanos was a plurality decision and the guidance from the EPA and the Corps has incorporated aspects of both Justice Scalia’s opinion (textual reasoning) and Justice Kennedy’s opinion (significant nexus approach), as well as other considerations such as the purpose of the CWA and scientific observation. In other words, jurisdictional determinations are filled with multifaceted considerations, almost always made on a case-by-case basis, and riddled with inconsistencies.
Further, determinations made by the Corps can be challenged following the decision in Sackett v. EPA, 566 U.S. 120 (2012) because such decisions are final agency actions. Additionally, the federal circuits have taken fractured approaches, adopting Justice Scalia’s reasoning, Justice Kennedy’s reasoning, or both, when hearing civil suits challenging jurisdictional determinations. As was seen with the 2015 Clean Water Rule and again here, agency decisions defining the CWA’s jurisdictional term, WOTUS, are susceptible to judicial review under Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc. 467 U.S. 837 (1984) and universal injunctions.
The injunction issued August 30, 2021 comes after the August 4, 2021 notice from the EPA and the Corps of their intent to restore the pre-2015 definition of WOTUS and build upon that regulatory foundation, though they have not provided an estimate of when a new jurisdictional definition will be published. The new rule should provide a degree of instruction for making jurisdictional determinations, but the rule’s longevity is likely another story.
Red-on-line provides personalized regulatory monitoring to help you to maintain compliance with changing EHS regulations. Click here to learn more about our software and regulatory update services, and to subscribe to our regulatory update newsletter.