On April 21, 2020, the Environmental Protection Agency (“EPA”) published the long-awaited Navigable Waters Protection Rule (“Navigable Waters Rule”) in the Federal Register. In the weeks since, multiple lawsuits have been filed challenging the rule. The various plaintiffs make up a diverse group of challengers including state governments, environmental nonprofits, and agricultural interest groups. Some allege that the Navigable Waters Rule does not do enough to protect the nation’s waters from pollution while others challenge the rule as a regulatory overreach.
This article is a summary of the major cases that have so far been filed challenging the Navigable Waters Rule, but does not necessarily cover all the cases that have been filed.
The Navigable Waters Rule
The Navigable Waters Rule is EPA’s most recent interpretation of the term “waters of the United States” as it appears in the Clean Water Act (“CWA”). The CWA is the primary federal law governing water pollution within the United States. Its purpose is to “restore and maintain” the “integrity of the Nation’s waters” which it accomplishes by prohibiting the discharge of pollutants into “navigable waters.” When the CWA was passed in 1972, Congress defined “navigable waters” as “the waters of the United States, including the territorial seas.” Congress left it to EPA and the United States Corps of Engineers (“Corps”), the two agencies charged with implementing the CWA, to further define the term “waters of the United States” (“WOTUS”).
In the decades since the CWA was passed, the definition of WOTUS has changed many times. The Navigable Waters Rule is the latest effort to bring clarity to the term. It narrows the previous regulatory definition of WOTUS adopted by EPA in 2015 by limiting the types of waterbodies included in the definition to four distinct categories: (1) the territorial seas and traditional navigable waters; (2) perennial and intermittent tributaries of such waters; (3) certain lakes, ponds, and impoundments of jurisdictional waters; and (4) wetlands adjacent to other jurisdictional waters (other than waters that are themselves wetlands). The Rule also specifically excludes twelve categories of waters from the definition of WOTUS, including ephemeral streams that only flow as a result of precipitation or snowmelt. Regulation of excluded waters will be left to the states. To read more about the history of “waters of the United States,” click here.
Although the Navigable Waters Rule was passed partially in response to a series of lawsuits that had limited the effect of the previous WOTUS rule adopted by EPA in 2015, it has already generated several lawsuits of its own. Several argue that the Navigable Waters Rule does not do enough to regulate the nation’s waters, while others argue that the Rule regulates too much.
Lawsuit Filed by States and Cities
On May 1, 2020, a coalition of states and cities joined together to file a lawsuit against EPA challenging the Navigable Waters Rule for not doing enough to project the nation’s waters. The plaintiffs in State of California et al v. Wheeler, No. 3:20-cv-03005 (N.D. Cal. 2020), include California, New York, Connecticut, Illinois, Maine, Maryland, Michigan, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Washington and Wisconsin, the Commonwealths of Massachusetts and Virginia, the North Carolina Department of Environmental Quality, the District of Columbia, and the City of New York. Their main concern is that by excluding several categories of waters that used to be protected by the CWA, such as ephemeral streams, the Navigable Waters Rule fails to properly implement the CWA.
The plaintiffs raise several arguments in their initial complaint. First, they argue that the Navigable Waters Rule is an impermissible interpretation of the CWA because it unreasonably rejected the significant nexus analysis that was used to define the term WOTUS by Justice Kennedy in Rapanos v. U.S., 547 U.S. 715 (2006). Instead, the Rule relies on the plurality opinion in Rapanos which was rejected by a majority of the Justices on the Supreme Court.
The Rapanos case addressed whether CWA jurisdiction included wetlands that were hydrologically isolated from any other waters of the United States, or whether it included non-navigable wetlands that did not “abut” a navigable water. The case resulted in three opinions from the court: a four-justice plurality authored by Justice Scalia; a concurrence authored by Justice Kennedy writing for himself; and a four-justice dissent. The plurality opinion concluded that wetlands could be included in the definition of WOTUS, but only when a wetland had a continuous surface connection with another water of the United States. In contrast, the Justice Kennedy opinion concluded it should be determined on a case-by-case basis whether a wetland could be regulated as a WOTUS based on whether the wetland possessed a “significant nexus” to a navigable water. Although both opinions have been used to inform the definition of WOTUS since the Rapanos decision was issued, the significant nexus analysis has been used more commonly then the plurality opinion.
In State of California et al v. Wheeler, the plaintiffs argue that by relying on the Rapanos plurality opinion to inform the Navigable Waters Rule, the agency excluded entire categories of waters that meet the significant nexus standard endorsed by a majority of the Supreme Court Justices.
Next, the plaintiffs go on to argue that in passing the Navigable Waters Rule, EPA failed to consider its own previous factual findings without explanation. The plaintiffs argue, that the findings EPA allegedly ignored showed that implementing the CWA according to the Navigable Waters Rule would fail to protect the quality and health of the nation’s waters. Finally, the plaintiffs argue that they specifically will be harmed by the Navigable Waters Rule because it removes CWA protections that those states and cities have come to rely on. The plaintiffs argue that while they have the authority to regulate the waters within their own borders, the Navigable Waters Rule puts them at risk for water pollution flowing from out-of-state sources which they have no authority to regulate.
The plaintiffs in this case ask that the court overturn the Navigable Waters Rule.
Lawsuits Filed by Environmental Groups
Several environmental groups have already filed cases challenging the Navigable Waters Rule in various federal district courts. The Chesapeake Bay Foundation has filed a case in District of Maryland, the Conservation Law Foundation has filed a case in the District of Massachusetts, and the South Carolina Coastal Conservation League has filed a case in the District of South Carolina. All the cases make similar arguments.
Like the states and cities in State of California et al v. Wheeler, the environmental plaintiffs argue that EPA impermissibly relied on the Rapanos plurality opinion when drafting the Navigable Waters Rule. They argue that EPA should not have relied on the plurality opinion because a majority of Supreme Court Justices had not agreed with it. Also like the plaintiffs in State of California et al v. Wheeler, the environmental groups all argue that EPA ignored its own scientific analysis that implementing the CWA according to the Navigable Waters Rule would not adequately protect the nation’s waters without explanation. Each case seeks to have the Navigable Waters Rule overturned.
Lawsuits Filed by Agricultural Groups
Finally, several lawsuits have been filed by various cattle associations in various jurisdictions challenging the Navigable Waters Rule as a regulatory overreach by EPA. The New Mexico Cattle Growers Association, Oregon Cattlemen’s Association, and Washington Cattlemen’s Association have filed similar cases, each arguing that EPA was too broad in its definition of “navigable” waters.
In these cases, the plaintiffs focus on the term “navigable waters.” They note that the term “navigable waters” as used in the CWA is very similar to the expression “navigable capacity of the waters of the United States” used in Section 10 of the Rivers and Harbors Act of 1899 which regulates construction on navigable waters. The plaintiffs in each case argue that this similarity indicates that Congress intended for the two phrases to be interpreted in the same way. Because the expression used in the Rivers and Harbors Act is applied to navigable-in-fact waters, otherwise known as waters that can be used as transport for commerce, the plaintiffs argue that the term “navigable waters” in the CWA has the same interpretation. Therefore, the plaintiffs allege that the Navigable Waters Rule is an unlawful interpretation of the term “navigable waters” because it includes waterbodies that cannot be used to transport commerce.
The plaintiffs in each case seek to have the Navigable Waters Rule overturned, and ask that the Rule be prevented from having legal effect while the lawsuits are underway.
Going Forward
Each of the cases filed challenging the Navigable Waters Rule has the potential to affect the definition of WOTUS and how the CWA is implemented. Because some cases argue that the rule does not do enough to protect the nation’s waters while others argue that the rule is too broad an interpretation of the term “navigable waters,” it is possible that conflicting court opinions could be issued from different jurisdictions. These cases will have a significant impact on agriculture due to the large swathes of land dedicated to agricultural uses and we will continue to follow these cases as they progress.
To read the Navigable Waters Rules, click here.
To read the complaint in State of California et al v. Wheeler, click here.
To read the complaint in Chesapeake Bay Found., Inc. v. Wheeler, click here.
To read the complaint in Conservation Law Found. v. U.S. Envtl. Prot. Agency, click here.
To read the complaint in South Carolina Coastal Conservation League v. Wheeler, click here.
To read the complaint in New Mexico Cattle Growers Ass’n v. U.S. Envtl. Prot. Agency, click here.
To read the complaint in Oregon Cattlemen’s Ass’n v. U.S. Envtl. Prot. Agency, click here.
To read the complaint in Washington Cattlemen’s Ass’n v. U.S. Envtl. Prot. Agency, click here.
For a full history of the evolution of WOTUS, click here.
For additional National Agricultural Law Center resources on the CWA, click here.