July 02, 2018

No clarity in sight for “waters of the United States”

Neal McAliley

The Clean Water Act’s jurisdiction extends to all “waters of the United States.” The phrase has created legal uncertainty and conflict for decades. Despite the Trump administration’s plan to simplify and reduce the scope of the “waters of the United States,” confusion will likely continue for the foreseeable future.

A murky history: 1980s to 2015

Regulations promulgated by the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) in the 1980s defined the “waters of the United States” to include navigable waters, waters connected to them, and waters “the use, degradation or destruction of which could affect interstate or foreign commerce.” Those regulations were called into question by two U.S. Supreme Court decisions, Solid Waste Authority of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) (2001) and Rapanos v. United States (2006), in which the Court held that the regulations went too far in asserting jurisdiction over so-called isolated waters and wetlands distant from traditionally navigable waters. This led to years of uncertainty over the precise scope of the “waters of the United States.”

In 2015, the Obama administration revised the 1980s-era regulations to address the specific issues raised by the Supreme Court, while continuing to regulate a broad range of waters. The Obama regulation then was challenged in a series of lawsuits by states and regulated interests seeking to limit the federal government’s role in water regulation. The regulation was stayed almost immediately pending resolution of the challenges.

Reversing course: The Trump administration

The Trump administration has stated it intends to repeal and replace the 2015 Obama-era regulation. EPA and the Corps have issued a final rule delaying the regulation’s applicability to 2020 while they devise a replacement. The agencies have also issued a proposed rule to rescind completely the Obama regulation and indicated they intend to propose a totally revised regulation that would limit the geographic scope of the “waters of the United States.”

An arduous rulemaking process

The recent rulemaking efforts are unlikely to resolve the controversy over the scope of the “waters of the United States” any time soon. In the short term, the Trump administration seeks to return to the 1980s-era regulations while it navigates the rulemaking process. Those regulations provide little guidance for many waters given the Supreme Court decisions rejecting their application. For environmental law practitioners, this means a return to the regulatory uncertainty that prevailed from 2001 to 2015—at least until the Trump administration promulgates its own rules.

The Trump administration is engaging in at least three separate rulemakings regarding the “waters of the United States.” Contentious rulemakings on major issues are time-consuming. The agencies must provide public notice and opportunity for comment, address the major comments submitted to them, and articulate a valid legal rationale to change regulatory directions. The Trump administration initially stated it would rescind the Obama regulation and propose a replacement by the end of 2017. But to date, it has only delayed the applicability date of the Obama regulation and has yet to propose its replacement.

EPA and the Corps received more than 600,000 comments just on their proposed rule to rescind the Obama regulation. They can expect many more comments on a proposed rule to redefine the “waters of the United States.” At the current pace, the agencies may not even propose a revised regulation before 2019.

Litigation delays are likely

Legal challenges will further delay the Trump rulemakings. The 2015 Obama regulation was greeted by a wave of lawsuits, filed in U.S. district courts and circuit courts of appeal across the country, brought by many supporters of the Trump administration (including the current EPA administrator). Those lawsuits enjoined the implementation of that regulation through the end of the Obama administration and most are still pending today. Opponents of the Trump regulations almost certainly will follow the same strategy. This means multiple lawsuits challenging multiple Trump rulemakings on the “waters of the United States” could be pending simultaneously in different courts—potentially as courts continue to hear challenges to the Obama regulation.

These challenges will not be easy to consolidate or quickly resolved. The Judicial Panel on Multidistrict Litigation refused to consolidate the district court challenges to the Obama regulation, which suggests the same fate for challenges to the Trump regulations. Challengers cannot skip over the district courts. In January, the Supreme Court ruled that challenges to the Obama regulation must be filed in district court, not in the courts of appeal as argued by both the Obama and Trump administrations. By requiring these challenges to start in the district courts before reaching the courts of appeal and potentially the Supreme Court, the decision makes it likely that challenges to Trump rulemakings will require years longer to resolve. It would be unsurprising if many of these challenges are unresolved by the time of the 2020 presidential election.

Little guidance for environmental lawyers

For environmental law practitioners, this means continued uncertainty regarding the geographic scope of Clean Water Act jurisdiction. For some types of waters, which are not addressed in the Supreme Court’s SWANNC or Rapanos decisions, there will be little debate. For instance, waters that are actually navigable and their major tributaries, as well as waters influenced by ocean tides, have been federally regulated since before the Clean Water Act’s passage.

However, the regulatory status of a large swath of waters that affect many people will remain uncertain. In particular, the Corps’ section 404 dredge-and-fill program will continue to be bedeviled by the regulatory status of wetlands that do not directly abut traditionally navigable waters and waters that lack a surface connection to traditionally navigable waters (i.e., “isolated waters”). Although one would not expect EPA and the Corps to assert jurisdiction over many such waters, that may not prevent private parties from pushing the boundaries of Clean Water Act jurisdiction through strategic citizen suits designed to expand the case law broadly applying the term “waters of the United States.” As a result, the policy debate over the “waters of the United States” is unlikely to be resolved—at least for the next few years.

Neal McAliley

Neal McAliley is a shareholder in Carlton Fields’ Miami office, where he practices environmental law and litigation.