EPA’s WOTUS Woes Spill into 2016
The “Waters of the United States” (WOTUS) Rule met more critics than fans when introduced last May, and its future still looks troubled. The Rule, issued jointly by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers, applies the Clean Water Act to define what waters fall under CWA’s programs. Early critics faulted the agencies for overreaching and expanding CWA’s jurisdiction beyond its established legal limits, while the agencies maintain that the scope of the new rule is well within CWA jurisdiction and existing regulations.
Prior to the Rule, in Rapanos v. United States, 547 U.S. 715 (2006), the Supreme Court limited CWA jurisdiction to wetlands, not including lowlands and transitional zones that occur between open waters and dry upland areas. The Rule changes the definition of WOTUS to include waters that can become subject to CWA’s jurisdiction if they have a significant nexus to other jurisdictional waters and fall within certain measured distances to those waters.
The WOTUS Rule includes a number of other noteworthy divergences:
- Tributaries and adjacent waters that share a significant nexus to the jurisdictional categories under previous law (traditional navigable waters, interstate waters, the territorial seas, and impoundments) are now jurisdictional by rule.
- “Tributaries,” now defined as both man-made and natural waterways, include small, intermittent and ephemeral tributaries, tributary lakes, ponds and wetlands, man- made and man-altered tributaries. Further, where man-made or natural breaks occur, “tributary” status continues so long as the bed, bank and ordinary high-water mark can be identified upstream of the break. Prior to the Rule, the duration of a given flow’s presence was determinative. Under the Rule, what matters is whether the flow travels into “waters of the United States.”
- “Adjacent waters” defined under the Rule now include waters located within a specified distance of any 100-year floodplain or the ordinary high-water mark of a traditional navigable water, interstate water, territorial sea, impoundment or tributary. Prior to the rule, “adjacent wetlands” jurisdiction was largely determined on a case-by-case basis.
- Certain types of waters previously categorized as “other waters,” including intrastate lakes, rivers, streams (including intermittent streams), mud flats, sand flats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes or natural ponds, were subject to CWA jurisdiction if they could affect interstate or foreign commerce. Under the Rule, five specific types of waters, including (1) prairie potholes, (2) Carolina bays and Delmarva bays, (3) pocosins, (4) western vernal pools and (5) Texas coastal prairie wetlands, are presumptively “similarly situated” to other waters that may have a significant nexus to other jurisdictional waters and can be considered together to apply CWA jurisdiction. Additionally, waters within a specified distance of any 100-year floodplain or the ordinary high-water mark of a traditional navigable water, interstate water, territorial sea, impoundment or tributary are subject to case-specific significant-nexus analysis.
- “Significant nexus” is now defined under the Rule as that water at issue which significantly affects the chemical, physical or biological integrity of a traditional navigable, interstate water or territorial sea. The determination of what constitutes a significant effect is based on peer-reviewed scientific literature discussing the nature of connectivity and effects of streams and wetlands on downstream waters. Factors that must be addressed in identifying a significant nexus include sediment trapping; nutrient recycling; pollutant trapping, transformation, filtering and transport; retention and attenuation of flood waters; runoff storage; contribution of flow; export of organic matter; export of food resources; and provision of life cycle-dependent aquatic habitat (such as foraging, feeding, nesting, breeding, spawning or use as a nursery area) for species located in a traditional navigable water, interstate water or the territorial seas.
The agencies considered the Rule to simplify and clarify jurisdictional determinations for U.S. waters subject to CWA, but opponents of the Rule saw the changes capturing virtually all waters with potentially devastating impacts on both the energy and agricultural industries.
Not surprisingly, states and water users challenged the Rule almost immediately, complaining that it improperly expanded CWA’s reach over lands as well as waters, and infringed on states’ authority to regulate those resources within their own borders. Even before the Rule went into effect last August, thirteen states, including North Dakota, Wyoming, Colorado and Montana, asked a federal judge to issue an injunction preventing implementation of the Rule until its “serious legal failings” were addressed. Other states and plaintiffs brought separate challenges against the Rule in both circuit and district courts. EPA and the Army Corps requested that all challenges be consolidated, and the Judicial Panel on Multidistrict Litigation consolidated fourteen petitions brought in eight different appellate courts, including the Second, Fifth, Sixth, Eighth, Ninth, Tenth, Eleventh and D.C. Circuits, for review by the Sixth Circuit Court.
In spite of that circuit court consolidation, a United States District Judge in North Dakota issued a preliminary injunction, which stayed implementation of the rule one day before it was to take effect on August 28, 2015. U.S. District Judge Ralph Erickson said the Rule was “exceptionally expansive” and that the agencies likely overstepped their authority and failed to comply with the Administrative Procedures Act. EPA and the Army Corps responded by asserting that the stay applied only to the 13 states who were part of the North Dakota suit.
Now, the wrangle appears to pivot on the question of jurisdiction between the circuit courts and the district courts. Under the CWA, the federal courts of appeals are given jurisdiction over review of agency action in “approving or promulgating any effluent limitation or other limitation,” and in issuing or denying any permit under the act. 33 U.S.C. § 1369(b)(1). Plaintiffs in the district courts, including the North Dakota court, argued that the Rule is not properly characterized as a “limitation” and does not involve the issuance or denial of a permit; thus the cited statute does not apply, making the district courts the proper courts of jurisdiction under 28 U.S.C. § 1331. The agencies maintain the Rule serves as an “other limitation,” and that all current cases are properly consolidated in the Sixth Circuit Court. EPA’s Clean Water Rule Litigation Statement can be found here.
Practically speaking, the ongoing jurisdictional confusion has slowed judicial determination of the Rule’s validity. On October 9, 2015, the Sixth Circuit stayed the rule in all states until the jurisdictional questions could be settled, and on February 22 of this year, a divided three-judge Sixth Circuit panel found that the circuit courts have jurisdiction over challenges to the Rule. That ruling was quickly challenged by several industry groups, who asked the full Sixth Circuit to overturn the split panel ruling. As we await the outcome of the jurisdictional squabble, the battle over WOTUS seems certain to boil through the year ahead.