September 10, 2018

“Waters of the United States”: Practical advice on determining jurisdiction

Neal McAliley

The geographic scope of Clean Water Act jurisdiction, always murky, is more muddled than ever. Until the Trump administration promulgates—and the courts uphold—new regulations delineating the “waters of the United States,” private parties have no clear guidance for determining whether any given water is federally regulated under the act. This article discusses their options in the absence of certainty.

No clear answers from the Supreme Court

The regulation of so-called “isolated waters,” which lack a clear hydrological connection to other navigable waters, has been uncertain since the U.S. Supreme Court ruling in Solid Waste Authority of Northern Cook County v. U.S. Army Corps of Engineers (2001) (SWANNC). Freshwater wetlands that do not directly abut actually navigable waters are questionable after Rapanos v. United States (2006). Small tributary features, such as ditches, creeks, or intermittent waterways, may not be regulated either. These all are the types of waters that are most likely to be privately owned and the location of activities that may—or may not—need a Clean Water Act permit. Given the state of the law, private parties are left with a few options.

Request a jurisdictional determination

As a starting point, one can ask the U.S. Army Corps of Engineers (Corps) whether a given water is part of the “waters of the United States.” The Corps can issue an approved jurisdictional determination regarding the status of any specific water, which is binding on the agencies for five years. In issuing a jurisdictional determination, the agency considers information from the property owner, which provides an opportunity for private parties to engage with the agency over the scope of its jurisdiction. Since the courts generally defer to agencies’ interpretations of statutes they administer, a jurisdictional determination offers the simplest way to obtain an answer.

Often one of the biggest challenges is to persuade the agency that a given water is not regulated. The 1980s-era regulations, which are being applied in most states while the agencies seek to promulgate new rules, define what waters are included and are written such that they arguably regulate any water that could be the site of an economic activity. Those regulations have only two exclusions, for “prior converted croplands” and “waste treatment systems.” (In those states where the 2015 Obama regulation remains in effect as a result of recent court rulings blocking the Trump administration’s delay of that rule, there are express exclusions that define what waters are not regulated.) Relatively few cases address the scope of the “waters of the United States.”

In most of the country this leaves private parties to advocate based on guidance documents issued by the agencies. The Federal Register preambles to the 1980s regulations identified several categories of waters that the agencies did not generally claim were regulated. The agencies have issued other forms of guidance, including “regulatory guidance letters” by the Corps and memoranda by the Corps and the U.S. Environmental Protection Agency, that address jurisdiction in specific circumstances. Corps district offices also often make their jurisdictional determinations available on their websites, which can be useful in identifying which facts the agency found conclusive in determining jurisdiction. By definition, these guidance documents are not legally binding, so their value is usually in their ability to help persuade agency officials. This usually happens in the context of issuing a jurisdictional determination or, in some circumstances, if there is a question whether a private party needed a permit for work that already has been done.

Litigate

As a last resort, private parties can turn to a court to decide the issue. Historically, federal courts have been reluctant to rule on the scope of Clean Water Act jurisdiction until after an agency has granted or denied a permit. However, that changed when the U.S. Supreme Court ruled in Corps v.Hawkes Co. (2015) that private parties can directly challenge jurisdictional determinations. Two of the Court’s cases, SWANCC and Rapanos, hold that there are limits on federal jurisdiction. These cases provide the opportunity for private parties to try to persuade a court to apply such limits to the facts of their cases. This can be a difficult task when arguing against the agency position, because courts generally give substantial deference to agency interpretations of statutes and their own regulations. An unsuccessful challenge may result in the validation of the agency’s conclusion and cost the challenger more in legal fees than it would have spent if it had simply obtained a Clean Water Act permit in the first place. But given that courts will now hear challenges to jurisdictional determinations, there are opportunities to litigate the scope of the “waters of the United States” that did not exist even a few years ago.

Conclusion

Until the scope of the “waters of the United States” is clearly defined in a new regulation that binds both private parties and the agencies nationwide, regulated parties will remain at a substantial disadvantage in disputes with the agencies. However, the lack of clarity reflects the absence of consensus regarding the scope of Clean Water Act jurisdiction, which means agencies and courts may be willing to consider new limits on the applicability of the act in individual cases.

Editor's Note

Please refer to the Section’s WOTUS and the Reach of the CWA webpagefor recent developments, including a summary of the August 16, 2018, decision in S. Carolina Coastal Conservation League, et al. v. Pruitt, No. 18-cv-330 (D.S.C.).

 

Neal McAliley

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