On June 22, 2020, the long-awaited Navigable Waters Protection Rule (“Navigable Waters Rule”) officially went into legal effect. The Navigable Waters Rule is the culmination of a long-running effort by the Environmental Protection Agency (“EPA”) to redefine the term “waters of the United States” (WOTUS), a central component to the Clean Water Act (“CWA”). The CWA regulates discharges of pollutants into waters that fall under the definition of WOTUS. The term has had multiple definitions since the CWA was first passed in 1972. To read more about the history of “waters of the United States,” click here. This latest rule is an effort to clarify the meaning of the term by narrowing the definition of WOTUS from the previous definition adopted by EPA in 2015.
The Navigable Waters Rule has prompted the filing of multiple lawsuits from states, environmental groups, and agriculture groups. Although no court has issued an opinion on the rule’s legality, one court has already issued an order order preventing the Navigable Waters Rule from having legal effect in the court’s jurisdiction, while another court has specifically declined to issue such an order.
Colorado v. U.S. Envt’l Prot. Agency
The court in State of Colorado v. U.S. Envt’l Prot. Agency, No. 20-cv-1461 (D. Colo. 2020) issued a preliminary injunction on June 19, 2020, three days before the Navigable Waters Rule was set to take effect. By issuing a preliminary injunction, the court has prevented the Navigable Waters Rule from taking legal effect within Colorado while the underlying challenge to the rule is being litigated.
In asking the court to issue a preliminary injunction, the plaintiff focused on section 404 of the CWA which is administered by the Army Corps of Engineers (“Corps”). Under section 404, the discharge of “dredged or fill materials” into a WOTUS is prohibited without a permit from the Corps. Under the WOTUS rule EPA adopted in 2015, isolated wetlands – a wetland that is not adjacent to a WOTUS – could still fall under the definition of WOTUS in certain circumstances. Under the Navigable Waters Rule, isolated wetlands are excluded from the definition of WOTUS. However, such wetlands are still under state jurisdiction and can be regulated by the state. The State of Colorado is in the process of developing a permitting system for the discharge of dredged or fill materials into state waters in anticipation of the Navigable Waters Rule. However, that process is still on-going, and until it is finished, the discharge of dredged and fill materials into Colorado state waters that are not under CWA jurisdiction will be conducted without any regulatory system in place. Colorado had decided to issue a state-wide dredge and fill ban until the permitting system can be finalized.
When seeking a preliminary injunction, there are four factors that a plaintiff must establish for the injunction to be granted: (1) that the plaintiff’s case is likely to succeed on the merits; (2) that the plaintiff is likely to suffer irreparable harm without a preliminary injunction; (3) that the balance of equities tips in the plaintiff’s favor; and (4) that an injunction is in the public interest. The court reviewed the four factors in light of the plaintiff’s section 404 arguments, and concluded that a preliminary injunction was necessary.
The court began by considering whether Colorado would suffer irreparable harm if the preliminary injunction did not go into effect. Irreparable harm must be “fairly traceable to the challenged action of the defendant.” The court reasoned that Colorado would suffer irreparable harm because the State planned to institute a dredge and fill ban if the Navigable Waters Rule went into legal effect before Colorado could finalize its dredge and fill permitting system. Colorado’s dredge and fill ban is “fairly traceable” to the Navigable Waters Rule, and would injure Colorado by requiring the State to spend resources enforcing the ban. According to the court, this constituted irreparable harm.
Next, the court concluded that the plaintiff had established that its case was likely to succeed on the merits. According to the court, the Navigable Waters Rule likely violated established interpretations of the CWA by excluding all wetlands that are not adjacent to a WOTUS from the WOTUS definition. In U.S. v. Rapanos, a United States Supreme Court case concerning wetlands and the CWA, the court reasoned that the question of whether a wetland was a WOTUS should be considered on a case-by-case basis. Therefore, the court in State of Colorado v. U.S. Envt’l Prot. Agency concluded that the plaintiff was likely to succeed on the merits of its case because the Navigable Waters Rule would not consider wetlands on a case-by-case basis.
Finally, the court considered the last two elements of the preliminary injunction test together and concluded that issuing the injunction would be in the public’s interest because declining to issue the injunction now but ultimately invalidating the rule later could lead to confusion.
This injunction only applies to section 404 of the CWA. This means that section 402, the provision of the CWA administered by the EPA which requires a permit to discharge a pollutant into a WOTUS, will operate under the Navigable Waters Rule in Colorado. Only dredge and fill activities which require 404 permits are affected by the injunction.
State of California v. Wheeler
In State of California v. Wheeler, No. 20-cv-03005 (N.D. Cal. 2020), the court declined to issue a preliminary injunction for the Navigable Waters Rule. Like State of Colorado v. U.S. Envt’l Prot. Agency, the plaintiffs in State of California v. Wheeler asked for the court to prevent the Navigable Waters Rule from taking legal effect while the underlying challenge to the rule was litigated. However, when the court considered the four preliminary injunction factors in State of California v. Wheeler, it concluded that a preliminary injunction was not necessary.
First, the court concluded that the plaintiffs had failed to show that their case was likely to succeed on the merits because the plaintiffs’ primary argument was that the Navigable Waters Rule was not a reasonable interpretation of WOTUS. According to the court, this argument was not likely to succeed because the term “WOTUS” is ambiguous and there is room for agency discretion when it comes to defining the term. Next, the court found that although the plaintiffs had alleged that environmental harm could occur if the preliminary injunction was not issued, the harm was too speculative to be considered “irreparable harm.” Finally, the court concluded that because the plaintiffs could not prove a likelihood of success on the merits or irreparable harm, it would not be in the public interest to issue an injunction.
State of California v. Wheeler will continue to be litigated, but the Navigable Waters Rule has gone into legal effect in the Northern District of California and will remain in effect unless it is overturned.
Going Forward
State of Colorado v. U.S. Envt’l Prot. Agency and State of California v. Wheeler are not the only legal challenges to the Navigable Waters Rule. Other lawsuits, which are discussed in more detail here, are underway and it is possible that preliminary injunctions could be granted in those other cases. This could lead to a scenario where the term WOTUS is interpreted differently across different jurisdictions. Not only could this potential patchwork of regulation cause confusion, but it is part of what the Navigable Waters Rule was trying to avoid. The previous rule adopted by EPA in 2015 faced several lawsuits which resulted in some states following the 2015 rule while others did not. EPA adopted the Navigable Waters Rule in an attempt to carry out the CWA the same in all jurisdictions.
At the moment, it is unclear whether challenges to the Navigable Waters Rule will result in a patchwork of regulation. However, it is something to watch out for as lawsuits play out across the country.
To read the order granting preliminary injunction in Colorado v. U.S. Envt’l Prot. Agency, click here.
To read the order denying preliminary injunction in State of California v. Wheeler, click here.
For more National Agricultural Law Center resources on the CWA, click here.