The legal standoff over the definition of US waters | Shumaker, Loop & Kendrick, LLP


Once again, developers and other interested parties are grappling with yet another district court ruling regarding the definition of United States waters. On August 30, 2021, the Arizona Federal District left the Trump administration from United States waters. Pasqua Yaqui Tribe c. US EPA, Case n ° 4: 20-cv-00266-RM, ECF n ° 99; Definition of “United States waters”; Final Rule, 85 Fed. Reg. 22250 (April 21, 2020) (Navigable Waters Protection Rule (NWPR)). As a result of this most recent decision, the United States Environmental Protection Agency (US EPA) and the Army Corps of Engineers (ACOE) “have halted the implementation of the NWPR and are interpreting the” United States Waters ”in accordance with the pre-2015 regulatory regime until later. opinion.”1

Pasqua Yaqui Tribe c. US EPA

On June 22, 2020, the plaintiffs filed a lawsuit in Arizona’s U.S. District Court which challenged the NWPR on various grounds, such as arbitrary and capricious, abuse of discretion, and contrary to the Clean Water Act. The Complainants also challenged the definition of the “US Waters – Recoding Pre-Existing Rules” rule, 84 Fed. Reg. 56626 (October 22, 2019), which repealed the 2015 Obama Rule discussed below.

The plaintiffs sought summary judgment on May 11, 2021. Rather than filing a response to the plaintiffs’ petition, the US EPA, now under the Biden administration, filed a voluntary dismissal motion without vacatur of the NWRP rule and a motion for a stay of information on the 2019 rule. The plaintiffs requested that the court grant not only the voluntary dismissal of the NWRP rule, but also the rescission of the rule. On August 30, 2021, the Court granted the US EPA’s motion as well as the plaintiffs’ request for vacatur. The court also ordered the parties, within 30 days, to file a proposal for further processing of the challenge to the 2019 Rule.

In response to the court ruling and the division among district courts over what definition of “United States waters” applies for jurisdictional purposes, the US EPA and ACOE issued a notice stating that ‘they would take jurisdiction decisions “in accordance with pre-2015 regulations. regime until further notice.”2

On September 29, 2021, the claimants requested a motion for an extension of time until November 30, 2021 to file a proposal to continue the process regarding the challenge to the 2019 rule. Some claimants have indicated that they will seek a stay of the vacatur before November 30, 2021.

Impact of federal agencies’ use of pre-2015 jurisdictional determination

The Trump administration’s definition of U.S. waters excluded many waters, such as ephemeral streams and isolated wetlands, from regulation that previously required a CWA 404 permit for dredging and backfilling activities. . States varied in how they intended to approach the implementation of the Trump administration rule. Some states determined that they had no jurisdiction over these waters and others created a licensing process that would deal with ephemeral streams and isolated wetlands. Now the US EPA and ACOE have indicated that states must stop enforcing the Trump administration rule.

Interested parties who relied on a state’s implementation of the Trump administration’s rule should contact the state’s environmental authority to determine the next course of action under the agencies’ recent decision. Depending on the state, there may be additional permit requirements to meet the recent ruling and agency guidelines.

The two-decade legal standoff

CWA § 404 (a) states that “the Secretary may issue permits, after notice and possibility of public hearings for the discharge of dredged or fill material into shipping (United States waters)”. The Clean Water Act does not define “United States waters”, but leaves discretion to the US EPA and ACOE to define them by regulation. Since the 1970s, 40 CFR § 230.3 (o) defines the following waters as jurisdictional:

  • Territorial seas and waters which are presently in use, or have been used in the past, or may be capable of being used in interstate or foreign commerce, including waters subject to the ebb and flow of the tide;
  • tributaries;
  • Lakes and ponds, and jurisdictional water reservoirs; and
  • Adjacent wetlands.

There has been little debate regarding the jurisdiction of agencies over these waters. However, there has been a great debate and political struggle over whether the agencies have jurisdiction over isolated wetlands and ephemeral streams. Several Supreme Court cases have shaped the definition over the past 20 years. Many of the cases that shape the definition involve the development of a property containing isolated wetlands.

In 1985, the United States Supreme Court ruled that the term “navigable waters” included not only waters considered to be “navigable” as defined by regulations, but also adjacent wetlands. United States v Riverside Bayview Homes, Inc., 474 US 121 (1985). In response, ACOE used the “Migratory Birds Rule” to assert jurisdiction over isolated wetlands, arguing that some migratory birds that were hunted used isolated wetlands and crossed state borders, these waters did part of interstate commerce. The United States Supreme Court ruled that ACOE’s interpretation of the migratory bird rule was beyond its authority and that isolated wetlands did not fall under the jurisdiction of the definition of “United States waters” . Northern Cook County Solid Waste Agency (SWANCC) v. US Army Corps of Engineers, 531 US 159 (2001). The United States Supreme Court re-examined this question in Rapanos v. United States, 547 US 715 (2006), which resulted in a plurality decision which led to two definitions of “United States Waters”. Justice Scalia and three other judges have ruled that “United States waters” are “relatively permanent” waters that hold a “continuous surface connection” with traditionally navigable water. Kennedy J., concurring, held that “United States waters” must have a “significant connection” to traditionally navigable waters. Rapanos v. United States, 547 US 715 (2006).

In response, the US EPA and ACOE issued guidance on how to interpret this decision in jurisdictional determinations. The US EPA and ACOE guidelines followed the United States Supreme Court ruling in Rapanos v. United States & Carabell v. United States (December 2, 2008) to make judicial decisions.3 These guidelines remained in effect until 2015, when the Obama administration finalized the proposed regulations regarding the definition of “United States Waters”. Clean Water Rule: Definition of “United States Waters”: Final Rule, 80 Fed. Reg. 37054.

The Obama administration revised the definition in an attempt to clarify the definition of plurality to include traditional waters as defined by the regulations, but broadened it to include: (1) holdbacks; (2) covered tributaries; (3) adjacent waters; (4) major connecting waters, including prairie potholes, Caroline and Delmarva bays, pocosins, western spring pools, and coastal prairie wetlands of Texas; and (5) other important connecting waters, including non-adjacent waters, such as wetlands, ponds, reservoirs, or certain non-exempt waters in which normal agricultural, livestock and animal husbandry activities take place. Forestry, which are located in the 100-year-old floodplain or within 4000 feet of the high tide line.

The revised rule was strongly rejected by interested parties and has been the subject of an appeal in several district courts.4 After 13 states filed a lawsuit to block the rule, the North Dakota District Court issued a preliminary injunction just before the rule took effect. North Dakota vs. US EPA, 127 F. Supp.3d 1047 (ND Dist. 2015). In another case, the Sixth Circuit Court halted the implementation of the 2015 rule by issuing a national suspension on October 9, 2015, a day before the rule came into force. In re EPA, 803 F.3d 804 (Sixth Circuit 2015). This decision was overturned in 2018 when the United States Supreme Court rendered a unanimous decision that appellate courts did not have jurisdiction to consider challenges to the Clean Water Act and, therefore, did not have the power to suspend. Instead, district courts in the United States had jurisdiction to hear challenges to the 2015 rule. National Association of Manufacturers. V. Ministry of Defense, 138 S.Ct. 617 (2018). This resulted in split decisions between district courts which, at one point, gave jurisdiction in 23 states and 23 of New Mexico’s 33 counties under the Obama administration’s 2015 rule, and the jurisdiction of 26 states and 10 counties in New Mexico under the Supreme Plurality Court. Decision.

When the Trump administration took office in 2017, it announced its intention to review and rescind the 2015 rule. The US EPA and ACOE proposed a rule on February 14, 2019 that would revise the definition of 2015 from “United States Waters”. The proposed definition would exclude isolated wetlands and ephemeral streams. This rule was finalized on April 21, 2020 and the rule came into effect on June 22, 2020. The NWPR: definition of “United States waters”; Final Rule, 85 Fed. Reg. 22250 (April 21, 2020).


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