Waters of the United States Forecast: Continued Cloudiness, No End in Sight

In previous alerts we addressed the continued national confusion about the nature and extent of federal jurisdiction over properties exhibiting “waters of the United States” asking, “What Are Waters of the United States” and “Why It Matters.” Trying to get a consensus on defining them has been impossible as the political/environmental regulatory process cycles around in a never-ending analogue to the hydrologic cycle itself. This alert briefly describes the latest twists and turns in the process.

Recall that in 2015 the Obama-era EPA and Corps of Engineers issued what they described as the most scientific-based regulatory determination of which water courses and bodies should be protected under Section 404 of the Clean Water Act (2015 WOTUS Rule). The 2015 WOTUS Rule was immediately challenged in federal courts around the U.S. by 30 states and trade organizations representing developers, builders, miners and agricultural interests as being improperly promulgated and being over-broad by reaching water courses, impoundments and isolated water bodies well beyond Congressional intent under the Clean Water Act. The multi-district disputes were consolidated in the Sixth Circuit Court of Appeals, which issued a nationwide Stay of the 2015 WOTUS Rule pending further analysis.

Although the Sixth Circuit’s nationwide Stay halted implementation of the 2015 WOTUS Rule, in January 2018 the Supreme Court determined in North American Manufacturers v. Dept. of Defense that U.S. Courts of Appeal do not have original jurisdiction to review regulatory challenges and that the Stay was improper. (Of note is that the North American Manufacturers case was the fourth time that issues associated with defining waters of the United States has been to the Supreme Court.) On February 28, 2018, the Sixth Circuit Stay was lifted. The status of other continuing cases over the 2015 WOTUS Rule are now pending around the country creating even more procedural confusion regarding the 2015 WOTUS Rule. One case, brought in the Southern District of Texas, has requested a nationwide Stay on the 2015 WOTUS rule since significant litigation will continue as the agencies continue to wrestle with the definitions.

Last year EPA announced that it would repeal and replace the 2015 WOTUS Rule, a process that is underway in steps: Step 1, maintain the status quo and Step 2, redefine “waters of the United States.” In order to avoid the confusion in the lower courts regarding the applicability of the 2015 WOTUS Rule, as previously announced as “Step 1,” the Trump EPA promulgated its final rule on February 6, 2018 in order to thwart the possibility that the 2015 WOTUS Rule could be implemented in some states but not others following the Sixth Circuit Stay being lifted. In the final rule to provide continuity and regulatory certainty for regulated entities,¹ the agencies intend to maintain the “status quo” by adding a 2015 WOTUS Rule applicability date of February 6, 2020. The logic of this extension appears to be that by February 6, 2020, the EPA will have completed Step 2 and redefined waters of the United States and the 2015 WOTUS Rule will be moot.

As would be expected in the continuing litigation cycle regarding the extent of federal jurisdiction over the nation’s water courses, immediately after the publication of the “applicability date extension,” challenges opposing the new applicability date were filed by the State of New York and separately by the Natural Resources Defense Counsel in the federal district court in the Southern District of New York.

Amidst the continuing uncertainty, one thing is clear to ecological scientists, regulators and the regulated community alike: the dispute regarding what are waters of the United States is nowhere near being resolved and uncertainty is, in fact, the status quo.

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¹Definition of "Waters of the United States" – Addition of an Applicability Date to 2015 Clean Water Rule, 83 Fed. Reg. 5200 (February 6, 2018).