The Trump administration has carried out a major rewrite of a key environmental rule, significantly tightening the definition of which bodies of water are subject to federal regulation under the Clean Water Act, and which are not.
The rule, governing what the statute calls “waters of the United States,” (WOTUS) is important to the construction industry because it determines where contractors must get a federal permit before they build near wetlands or streams. [View text of new rule here.]
Construction groups hailed the new rule, which top officials of the Environmental Protection Agency and Army Corps of Engineers signed on Jan. 23. But environmental organizations blasted the regulation, and vowed to pull out the stops to block the rule. Court challenges are all but inevitable.
In a conference call with reporters, EPA Administrator Andrew Wheeler said, “After decades of constant litigation and uncertainty, the Trump administration’s Navigable Waters Protection Rule brings regulatory certainty to American farmers, landowners, businesses and the American public.”
The new regulation would replace an Obama administration rule favored by environmentalists but which industry groups contended defined federal waters too broadly. The Trump administration last Oct. 22 published a rule to repeal that 2015 regulation, a move that critics challenged in federal court.
The new navigable waters rule lists four categories of waters that would be subject to federal jurisdiction. They are: territorial seas and waters used in interstate or foreign commerce; certain tributaries; lakes and ponds; and wetlands that abut any of the other three types of waters.
The rule also specifies 12 sorts of waters that would not be subject to federal regulation. Among them are ephemeral streams and similar bodies of water; groundwater; ditches; previously converted cropland; artificial lakes and ponds; constructed stormwater control ponds or other features; and “water-filled depressions” that are considered “incidental” to construction or mining activity.
Praise from construction groups
Stephen Sandherr, Associated General Contractors of America chief executive officer, said in a statement that the new regulation “will reduce regulatory uncertainty and bureaucratic confusion that threatened to stifle countless essential projects to improve our infrastructure and the environment across the country.”
The American Road & Transportation Builders Association also welcomed the new regulation and particularly was pleased to see roadside ditches specifically excluded from federal jurisdiction.
ARTBA President Dave Bauer said in a statement, “The new rule recognizes that delay and uncertainty only serve to increase transportation project costs.”
The regulation will take effect 60 days after it is published in the Federal Register—unless opponents succeed in sidetracking it.
Court challenges expected
Larry Liebesman, a senior adviser with water resources consulting firm Dawson & Associates, says, “I think you’re going to see lawsuits—that are probably being drafted even as we speak right now.”
He says those challenges could be filed by environmental groups and by a coalition of “blue states.”
Liebesman, a former senior trial attorney with the Justice Dept.’s environmental division, adds, “And it will be a broad-based challenge to this final rule, on legal, policy and even constitutional grounds as well.
He predicts that the lawsuits will challenge “all the aspects of the law—the process by which it was issued, public notice, as well as the merits.
The Southern Environmental Law Center plans to file a court challenge, a spokesperson said.
Blan Holman, senior attorney in the center’s Charleston office, said in a statement, “If allowed to stand, this bulldozing of clean water protections would be among this administration’s dirtiest, most dangerous deeds.”
Holman added, “We plan to fight them with everything we have to protect our communities and clean water.”
Gina McCarthy, Natural Resources Defense Council CEO, said in a statement, “We will do all we can to fight this attack on clean water. McCarthy, a former head of the EPA, added, “We will not let it stand."
A senior EPA official said on the conference call that the federally regulated tributaries will be those that are “perennial and intermittent and “contribute flow to the traditional navigable waters…in a typical year.”
He added, “We decided to draw the line clearly at ‘ephemeral’ versus ‘intermittent.’”
Wetlands must physically touch another navigable body of water to qualify for federal jurisdiction under the rule. But the call of “in or out” can get more complicated. The EPA official also said that wetlands separated from such waters by a natural feature, such as a berm, also would qualify.
In some cases, wetlands separated from waters by a constructed feature, such as a levee, might also be judged a federal responsibility if the culvert allows “regular surface-water communication” from the wetland to a river, for example, it would fall under federal jurisdiction, he said.
Echoes of Rapanos decision
Thaddeus Lightfoot, a partner with the law firm Dorsey & Whitney, said in a statement that the new EPA-Corps rule follows the approach to clean water jurisdiction taken by the late Supreme Court Justice Antonin Scalia in the 2006 case Rapanos v. U.S.
In that case, the high court didn’t completely settle the murky issue of the scope of federal water authority, with justices writing five separate opinions, none of which won a five-vote majority of the court.
Scalia’s opinion, which gained a plurality of four, said federally regulated waters of the U.S. “should include only relatively permanent, standing or continuously flowing bodies of water, or waters and wetlands with a continuous surface water connection between it and a permanent water body,” Lightfoot said.
In contrast, he noted, before the 2015 Obama regulation, the EPA and Corps had based their approach to water jurisdiction on a different opinion in Rapanos, a concurring opinion written by then-Justice Anthony Kennedy.
Kennedy came up with the concept that a federally regulated waterway needed a “significant nexus” to a navigable waterway.
Lightfoot, also a former trial attorney in the Justice Dept. environmental division, said that the new navigable waters rule “not only substantially narrows the reach of the [Obama] WOTUS rule.” He added, “It also excludes most wetlands formerly within the jurisdiction of the Clean Water Act under Justice Kennedy’s ‘significant nexus’ test.”
The senior EPA official stated, “This rule does away with the ‘significant nexus’ test.”
Thus, the new rule puts types of wetlands that EPA and the Corps had long regulated outside of the reach of federal authority, Lightfoot said.