13 States Block Clean Water Rule (WOTUS) Today – Remaining States Subject to Rule Tomorrow

Today, a North Dakota federal judge enjoined the implementation in 13 states of the Obama Administration’s new Clean Water Rule: “Definition of Waters of the United States” (also known as the Waters of the United States Rule, or WOTUS), which becomes effective tomorrow, August 28, 2015. The rule, proposed on June 29, 2015 in the Federal Register, redefines the Clean Water Act’s “navigable waters of the U.S.” to include “those waters that require protection in order to restore and maintain the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, and the territorial seas.” Congress defined “navigable waters” in section 502(7) of the Clean Water Act as “waters of the United States, including the territorial seas.” The term is critical to determine when a permit for discharge is required and to determine whether there has been an unlawful discharge to such waters in violation of the Clean Water Act.

In a bold move, earlier this month, thirteen states asked a federal district court judge for a preliminary injunction against EPA, asserting that EPA’s Clean Water Rule is arbitrary and capricious. The rule defines which features constitute riparian areas, floodplains, and tributaries under the Clean Water Act and according to EPA is consistent with recent Supreme Court cases. The court action came about a month after the states sent a letter to EPA and the US Army Corps of Engineers asking the to delay implementation of the rule by nine months. The rule implementation date is August 28; however, a federal district court judge in North Dakota enjoined the implementation today for 13 states. The injunction applies and the prior regulation will be implemented instead of the new rule in the following states: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.  EPA contends that the new Clean Water Rule will become effective in the remaining states tomorrow, August 28, 2015. However, twenty-eight other states and several private parties have also challenged the rule.

Today, the federal judge in North Dakota found that the rule was “exceptionally expansive.” The judge indicated that the EPA and Corps overstepped their authority and may have acted arbitrarily and capriciously, without complying with the Administrative Procedures Act. Judge Erickson noted that the court had original jurisdiction because the rule was not related to any permitting processes, despite EPA’s assertion to the contrary. The rule does not impose effluent limitations; rather, it redefines “waters of the United States.”

Concerning the overreaching, the judge found that the rule allows EPA to regulate waters that are not connected in any way to the navigable waters of the United States.  Prior to the new rule, EPA relied on the “significant nexus” test set forth by the U.S. Supreme Court in Rapanos v. United States, 547 U.S. 715, 780 (2006), and evaluated upstream waters on a case-by-case basis to determine if a significant nexus existed to navigable waters. EPA claims this case-by-case approach created ambiguity and inconsistency. Now, under the new rule, almost all waters and wetlands across the country theoretically could be subject to EPA’s and the Corps’ jurisdiction.

The new rule is based on EPA’s technical claim that pollutants dumped into a tributary will flow down to navigable U.S. waters. However, the definition allows for regulation of any area that has any amount of water with bed and banks and an ordinary high water mark. The definition excludes certain manmade ditches and drains, but includes wetlands that are remote and intermittent. EPA asserts that upstream waters fall within its jurisdiction of because they are integral parts of the aquatic environment and necessary to maintain the integrity of downstream waters; if these upstream waters are polluted, EPA claims, there is a significant effect downstream.

In the new rule, EPA and the Corps define five specific categories of “waters of the United States” that fall within their jurisdiction: traditional navigable waters, interstate waters, territorial seas, impoundments of jurisdictional waters, tributaries, and adjacent waters.

In addition, EPA identifies two additional categories that may be jurisdictional, subject to case-by-case analysis to determine if a significant nexus exists to a navigable water. The rule identifies two categories that may may become jurisdictional on a case-by-case basis. For the first category, EPA identifies five subcategories, including: Prairie potholes (glacially formed wetlands, lacking permanent natural outlets), Carolina and Delmarva bays (ponded depressional wetlands that occur along the Atlantic from Florida to New Jersey, receiving water through precipitation and lack natural outlets), pocosins (peat-accumulating tree and shrub-dominating wetlands from Virginia to Florida with shallow water tables and slow movement of water), western vernal pools in California (shallow seasonal wetlands that accumulate water during wet months and dry up during warm months), and Texas coastal prairie wetlands (freshwater wetlands in depressions, ridges, intermound flats, and mima mounds formed by ancient rivers and bayous). These subcategories must be analyzed by EPA and the Corps in conjunction with similarly situated waters to make the significant nexus analysis. The second category includes waters for which the agencies have made no conclusions, but which are similarly situated to other waters, and are located within the 100-year floodplains of traditional navigable water, interstate water, or the territorial seas.

Perhaps the most overreaching part of this rule is the inclusion of “adjacent waters,” which were not previously included in the Clean Water Act’s definition of navigable waters. Adjacent waters includes bordering, contiguous, neighboring waters, lakes, waters separated from other waters (by constructed dikes, barriers, natural berms, beaches, or dunes), waters connecting segments of or are at the head of a stream or river, wetlands, ponds, lakes, oxbows, impoundments, and “similar water features.”

The rule specifically excludes certain types of (but not all) ditches and stormwater control features created in dry land and certain wastewater recycling structures created in dry land.

According to Judge Erickson, the EPA or the Corps may assert jurisdiction over navigable waters of the U.S. if the waters meet the 2006 U.S. Supreme Court’s opinion in Rapanos. In that case, Justice Kennedy’s concurring opinion held that jurisdiction is limited to those waters having a significant nexus to downstream navigable waters, and the jurisdiction is not extended to any tributaries with a hydrologic connection without that significant nexus. According to Judge Erickson, the new rule allows EPA jurisdiction over waters that do not have a “significant nexus.”

In addition, the judge found that there is a likely APA claim here because EPA and the Corps failed to establish a rational connection between the facts found and the rule being promulgated.  The judge also found that public interest would be served by the preliminary injunction because it would ensure “that federal agencies do not extend their power beyond the express delegation from Congress.”

This case will now proceed in the U.S. District Court for the District of North Dakota, as North Dakota et al v. U.S. Environmental Protection Agency et al, no. 3:15-v-00059.

Other states and private parties that have challenged the Clean Water Rule in separate lawsuits claim that the rule disrupts the balance between federal and state authority.

Developers, industries with NPDES outfalls, farmers, vineyard owners, state and local governments, energy companies, and many others will be impacted by the new rule when it goes into effect.