On June 9, the Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps”) released a joint statement announcing their intent to revise the definition of “waters of the United States” (“WOTUS”), a key component of the Clean Water Act (“CWA”). This announcement signals the latest attempt by EPA and the Corps to define the term, which determines which waters fall under CWA jurisdiction. The most recent regulatory definition of WOTUS was adopted in 2020 following years of lawsuits challenging the regulatory definition adopted in 2015.
While it is currently unclear what the new WOTUS rule will look like, EPA and the Corps have identified guidelines they intend to follow as they draft the proposed rule. Additionally, there are still several lawsuits challenging the 2020 WOTUS rule which may be affected by the announcement.
What’s Going On?
EPA and the Corps recently announced that they would begin taking steps to once again issue regulations to define to term WOTUS under the CWA. This decision is in line with an Executive Order issued by the Biden Administration in January instructing federal agencies to review several regulations adopted during the Trump Administration, including the Navigable Waters Protection Rule (“Navigable Waters Rule”). The Navigable Waters Rule, which was adopted in 2020, narrowed the definition of WOTUS to include only six categories of water. This was a departure from the WOTUS rule adopted by the Obama Administration in 2015 which broadened the jurisdiction of the CWA and incurred many legal challenges.
In the joint statement, EPA Administrator Michael Regan noted that after reviewing the Navigable Waters Rule as directed by the Executive Order, EPA and the Corps determined that the rule “is leading to significant environmental degradation.” According to both agencies, the Navigable Waters Rule had particularly reduced clean water protections in more arid states like New Mexico and Arizona where nearly all of the over 1,500 streams the agencies had assessed were found to not fall under CWA jurisdiction. Additionally, the agencies identified 333 projects that would have required a Section 404 permit from the Corps prior to the Navigable Waters Rule, but no longer due under the Rule. Regan cited these findings as reasons why a new WOTUS rule would be developed.
EPA and the Corps also listed some considerations that they claim will be steering the new rulemaking effort, including: protecting water resources and communities in a manner consistent with the CWA; the latest science and the effects of climate change on water in the United States; emphasis on practical implementation for states and Tribes; and reflection on the experience of and input received from landowners, the agricultural community, states, tribes, local governments, community organizations, environmental groups, and disadvantaged communities. Finally, the agencies stress a commitment to stakeholder engagement, and plan to provide opportunities for public participation.
Currently, there is no available draft of a proposed WOTUS rule. So far, EPA has been filing motions in on-going legal challenges to the Navigable Waters Rule, asking that courts dismiss the cases and remand the Rule back to EPA for consideration.
Status of WOTUS Lawsuits
The following lawsuits were all filed to challenge the Navigable Waters Rule. Following the announcement from EPA and the Corps, some of the cases have been closed while some are still on-going. Below an update for the status on each case is provided. For more background information on these cases, click here, here and here.
South Carolina Coastal Conservation League v. Wheeler, No. 20-cv-01687 (D. S.C.): On July 15, 2021, the judge in this case issued an order remanding the Navigable Waters Rule back to EPA, and dismissing the case. EPA filed a motion to remand in June, stating that the agency had already decided to conduct a new rulemaking to reexamine the Navigable Waters Rule. Because it is already planning to revisit the rule, EPA argued that continuing the litigation would be an unnecessary waste of resources. The court agreed with EPA, granting both the requests to remand and to dismiss the case. The Rule is now back before EPA for further review. Importantly, the Navigable Waters Rule was remanded without vacatur, meaning that the court allowed the Rule to remain in legal effect while EPA conducts its new rulemaking process.
Conservation Law Found. v. U.S. Envtl. Protection Agency, No. 1:20-cv-10820 (D. Mass.): This case is currently still open and active in the court system. One June 9, 2021, EPA filed a motion asking the court to both dismiss the case and remand the Navigable Waters Rule back to the agency without vacatur. The motion states that further litigation would be a drain of court resources because EPA has already made the decision to review and revise the Navigable Waters Rule. The plaintiffs have filed a response, partially supporting and partially opposing EPA’s request. While the plaintiffs do not oppose the request for remand, they argue that if the rule is remanded it should also be vacated so that the Navigable Waters Rule will not be in legal effect while EPA conducts a new rulemaking process. The plaintiffs argue that vacatur is appropriate because the Navigable Waters Rule contains numerous legal errors, and vacatur is in the public’s interest.
The court has yet to issue a decision in response to EPA’s motion. If it grants EPA’s request, it will be the second court to send the Navigable Waters Rule back to EPA. If it chooses to both remand the rule and grant the plaintiffs’ request for vacatur, it would likely mean that the Navigable Waters Rule will no longer have legal effect only in the court’s jurisdiction of Massachusetts.
State of California v. Wheeler, No. 20-cv-03005 (N.D. Cal.): Currently, this case remains active in the court system. On July 16, 2021, EPA filed a motion asking the court to remand the Navigable Waters Rule back to the agency without vacatur. The request comes as a result of EPA’s decision to initiate a new rulemaking process to either revise or repeal the Navigable Waters Rule. Because EPA has made the decision to revisit the rule, it argues that continuing with litigation would be unnecessary as the new rule may either resolve or moot some or all of the plaintiffs’ claims.
At the moment, the plaintiffs have not had time to respond to EPA’s request. The court will likely make its decision after the plaintiffs file a response.
State of Colorado v. U.S. Envtl. Prot. Agency, No. 20-cv-1461 (D. Colo.): As of July 14, 2021, this case has been paused until January 14, 2022. The plaintiff and the defendant in this case filed a join motion requesting that the lawsuit be put on hold until January following EPA’s announcement that it would initiate a new rulemaking process to revisit the WOTUS definition. All the parties involved in the lawsuit agreed that staying the case for a six-month period was appropriate in order to allow EPA time to review the rule.
Chesapeake Bay Found., Inc. v. Wheeler, No. 20-cv-01063 (D. Md.): This case remains open in the court system, but was put on pause in February until July 29, 2021. The pause was issued following a request from EPA that the case be stayed while EPA determined whether or not it would initiate a new rulemaking process to redefine WOTUS. As part of the stay order, the court instructed the parties to submit a joint status report proposing further proceedings on or before July 29. Additionally, the court instructed the EPA to file a status report on or before April 29. In that report, EPA noted that it would be reviewing the Navigable Waters Rule and suggested that continuing the stay of proceedings after July 29 would most likely be appropriate. Currently, the parties have yet to file the joint status report proposing further action. Until that report is filed, it is unclear whether the case will remain paused.
In the announcement that EPA and the Corps would revisit the regulatory definition of WOTUS, the agencies also stated that there would be opportunity for public participation which would be “conveyed in a forthcoming action.” While that action has not yet been announced, EPA has set up a webpage to provide information on all upcoming activities.
Before a new WOTUS rule can take legal effect, it will have to go through a rulemaking process. That process will involve the publication of a proposed rule, time for public comment, and then finally a final rule which will become law. Both the proposed and final rules will be published in the Federal Register, and the public will be given time to submit comments on the proposed rule that EPA will take into account when drafting the final rule. Currently, there is no indication as to when a proposed rule will be issued.
To read the joint press release from EPA and the Corps, click here.
For a timeline of the legal definition of WOTUS, click here.
For more National Agricultural Law Center resources on the CWA, click here.