When is a water a "water of the U.S."?

June 28, 2016

Environmental Law Alert

Author(s): Libby Ford, QEP, CHMM, CEP, Jesse Hiney, Alison B. Torbitt

The Clean Water Act (“CWA”) has been called the most successful modern federal pollution control law. In the 45 years since its passage, many “dirty” lakes and rivers have been cleaned up and are now deemed “fishable and swimmable,” and waters that still have measured water quality problems have been identified as Priority waters, earmarked for water-specific clean-up plans. Despite all that has been accomplished under this Act for the last 45 years, though, its application to certain waters remains in dispute.

In the year-plus since the most recent regulations directing how to identify “Waters of the United States” (often referred to as “WOTUS”) were finalized, numerous challenges to the rule have been filed. It seems as if no one is happy with the most recent clarifications. Not only are the environmental and industrial communities duking it out, numerous states have also challenged the rule. This topic has become so contentious that, to date, litigation has focused on which court is the appropriate venue in which to challenge the rule, with any chance of getting to the substantive portions of the rule being months, if not years, away.

The definition of “jurisdictional” waters was generally accepted and understood for the first 20 to 25 years after the CWA passed, but as more potentially developable lands began to be deemed WOTUS subject to CWA jurisdiction, challenges began to make their way through the court system. During years of interpretation and “clarification,” the issue of which waters are jurisdictional waters under the Act became, and has remained, quite contentious, making its way to the Supreme Court twice already, and most likely, it is on its way back there again.

Overview of the new WOTUS Rule

Congress, in the Federal Water Pollution Control Act (“FWPCA”),[1] did not expend a lot of time and effort on identifying to what waters the CWA applies. Certainly Congress, in 1972,  did not think figuring out what waters fell within the jurisdiction of the CWA and what waters did not was an overly complicated issue. Groundwater was out; larger surface waters that had some at least remote claim to being navigable were covered. In the EPA’s own words, “the jurisdictional scope of the CWA is ‘navigable waters,’ defined in section 502(7) of the statute as ‘waters of the United States, including the territorial seas.’”[2] As early as 1986, this statutory language had been turned on end and codified by expanding the Act’s jurisdiction from only waters that are “navigable in fact” by defining the term WOTUS to include not only traditional navigable waters but also interstate waters, all other waters that could affect interstate or foreign commerce, impoundments of waters of the United States, tributaries, the territorial seas, and adjacent wetlands.[3]

Once challenges to either EPA and/or the U.S. Army Corps of Engineers (“USACE”) claiming that certain non-navigable waters were “jurisdictional” under the Act began to make headway through the courts, the two agencies attempted to refine the WOTUS definition through guidance, precedent and rulemaking. This eventually led to two trips to the Supreme Court,[4] where the definition was parsed and, depending on your point of view, either “clarified” or “muddied.” After trying to address the Supreme Court determinations through guidance, which just led to further complaints and challenges, EPA proposed and, a little over a year ago, finalized its latest attempt to codify the definition of WOTUS through new regulations.

This May 27, 2015, final rule (“the 2015 rule”) includes much of the EPA and USACE existing definition of “waters of the United States” and reflects both the 2003 and 2008 guidance.[5] It identifies categories of waters that are (and are not) jurisdictional, as well as categories of waters that require a case-specific evaluation. Under the rule, the classification of waters deemed to be WOTUS generally fall into two categories:

  1. Waters that are jurisdictional by rule (“categorically jurisdictional”) and

  2. Waters that may be determined to be jurisdictional based on case-specific analysis due to the presence of a “significant nexus.”

Waters that are categorically jurisdictional

Under the first category, six categories of waters are automatically jurisdictional (“by rule”) without case-specific analysis:

  • Waters susceptible to interstate commerce, known as traditional navigable waters (no change from existing rules or the 2014 proposal);
  • All interstate waters, including interstate wetlands (no change from existing rules or the 2014 proposal);
  • The territorial seas (no change from existing rules or the 2014 proposal);
  • Tributaries of the above waters if they meet the definition of “tributary” (these waters are jurisdictional under existing rules, but the term “tributary” is newly defined in the final rule);
  • Impoundments of the above waters or a tributary, as defined in the rule (no change from existing rules or the 2014 proposal); and
  • All waters, including wetlands, ponds, lakes, oxbows, and similar waters, that are adjacent to a water identified in the above categories (these are considered jurisdictional under the final rule because the agencies conclude by rule that they have a significant nexus to a traditional navigable water, interstate water, or the territorial seas; the final rule provides a revised definition that, for the first time, limits what will be considered “adjacent”).

At least one commentator recently has opined that the expanded definitions of “Tributaries” and “Adjacent” waters under the “categorically jurisdictional” portion of the 2015  rule virtually eliminate any need to rely on finding a case-specific “significant nexus” to claim that a water falls under the Act’s jurisdiction.[6] We believe that this is an overly broad, conservative reading of the 2015 WOTUS rule and, while it may be expedient to accept it, in the long run, it may not be in a project’s best interest to forego this important step in the analysis.

Waters that are “Jurisdictional” based on a “Significant Nexus”

The Supreme Court has ruled that to establish CWA jurisdiction over non-categorically jurisdictional waters, there has to be “some measure of the significance of the connection for downstream water quality … Mere hydrologic connection should not suffice in all cases; the connection may be too insubstantial for the hydrologic linkage to establish the required nexus with navigable waters as traditionally understood.”[7]

The connection enunciated by the court is referred to as a “significant nexus”, and such a finding is required for CWA jurisdiction to apply to waters that are adjacent to a categorically jurisdictional water body. Significant nexus is not a scientific term, but rather a determination made by the agencies in light of the law, science, and the agencies’ experience and expertise. Functions that might demonstrate a significant nexus include serving as a nursery area for aquatic species, sediment trapping, and/or retention of flood waters. The 2015 rule notes that a hydrologic connection is not necessary to demonstrate significant nexus, because the function may be demonstrated even in the absence of a physical connection (e.g., pollutant trapping is one such function).

The 2015 rule establishes two defined sets of additional waters that will be a “WOTUS” if they are determined to have a significant nexus to a jurisdictional water:

  1. The five subcategories of waters previously considered “other waters”; prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools, and Texas coastal prairie wetlands. Under the rule, these waters will be jurisdictional if a significant nexus to downstream waters is found, based on a case-specific evaluation that takes into account other waters from the same subcategory in the same watershed.
  2. Waters located in whole or in part within the 100-year floodplain of a traditional navigable water, an interstate water, or the territorial seas and within 4,000 feet of the high-tide line or ordinary high-water mark (OHWM) of a jurisdictional water. Because waters located in the 100-year floodplain and within 1,500 feet of the OHWM of a jurisdictional water are already considered “adjacent” under the new rule and thus categorically jurisdictional, this second set of waters requiring a significant nexus analysis in practicality applies to waters located within the 100-year floodplain of a traditional navigable water, interstate water, or the territorial seas that are between 1,500 feet and 4,000 feet of the OHWM of a jurisdictional water.

Under the 2015 rule, waters other than these two types are automatically deemed to be either categorically jurisdictional or categorically excluded from jurisdiction.

A. Challenges to the Rule

At least 27 states, plus a host of municipal, environmental, industrial, and agricultural entities, have challenged the rule at both the federal district and federal appellate levels.

Current Status
On October 9, 2015, in a surprising move, the U.S. Court of Appeals for the Sixth Circuit stayed the 2015 Rule nationwide, pending further action of the court.[8] Despite some questions as to whether it was within the Sixth Circuit’s jurisdiction to effect a nationwide stay, EPA and the Department of the Army are, for now, complying with the stay and resumed nationwide use of the agencies’ prior regulations defining the WOTUS term.  EPA has stated that the “jurisdictional determination” regulations will be implemented as they were being applied before August 27, 2015. Within this regulatory framework, EPA and the Corps will apply relevant case law, applicable policy, and the best science and technical data on a case-by-case basis in determining which waters are protected by the Clean Water Act.[9]

Two levels of decisions the courts must make

1.   At what federal court level should the initial challenge be heard?

For one of the first times in modern environmental law, the issue of which court has the authority to hear challenges to rules brought under a major environmental statute is playing itself out in a very public way. The two courts where the initial challenges might be heard are:

  • At the appellate level: On February 22, 2016, the Sixth Circuit Court of Appeals held that jurisdiction was proper in the appellate court, relying on precedent to review the CWA section 509(b)(1) criteria expansively. Opponents to this determination then filed multiple “en banc” petitions. These petitions were all denied on April 21, 2016.[10] Now that the Sixth Circuit has claimed jurisdiction, it will hear arguments on the merits of the 2015 rule.
  • At the district court level: States, including Ohio and North Dakota, and industry groups such as the Utility Water Act Group and Murray Energy Corp., challenged the rule in both federal district and circuit courts. [11] We will watch in real time whether courts entertain these arguments in light of the Sixth Circuit stay. At least one district court has stayed, but not dismissed, an action pending the Sixth Circuit’s ruling.[12] The Justice Department has asserted that the only a federal circuit court has jurisdiction to hear the challenge. The central question is whether the federal government is correct in asserting that the rule falls within a specific set of circumstances listed in section 509(b)(1) [13] of the Clean Water Act that authorizes appellate review. This includes whether the rule is an “other limitation”—meaning a limitation on the way the EPA regulates certain pollutant discharges—under section 509(b)(1)(E) of the Clean Water Act.

Most recently, arguments before the 11th Circuit focused on whether any other court can hear a simultaneous challenge to the 2015 rule now that the Sixth Circuit has claimed jurisdiction. The Justice Department, in a brief, [14]recently argued in this case that an 11-state coalition cannot challenge the 2015 rule in two federal courts at the same time, especially since the Sixth Circuit stated that it has jurisdiction to review the myriad lawsuits over the 2015 rule. The government brief urged the 11th Circuit to dismiss the proceedings on jurisdictional grounds alone. In its brief, the government agreed with the U.S. District Court for the Southern District of Georgia, which found, in September 2015, that as a District Court, it lacked jurisdiction to block the 2015 rule.[15] The Justice Department also argued that the states have no basis for urging the 11th Circuit to address which court should review the water rule when their own challenge is being consolidated with 21 other petitions before the Sixth Circuit.

2.  Decision on the merits of the rule.[16]

Some of the key procedural and substantive issues raised in the various challenges include:

Procedural arguments – The agencies subverted the notice-and-comment process by:

  • Failing to seek comment on scientific reports relied on in the rule.
  • Failing to seek comment on major revisions to the Proposed Rule before the rule was finalized.
  • Engaging in an unprecedented advocacy campaign in support of the Proposed Rule during the comment period.
  • Lack of notice and comment on the geographic distance standard. 

These problems, individually and together with the other procedural and substantive issues, are likely to cause irreparable harm to those seeking to comply with the Act and, hence, the rule is not in the public interest.

Substantive arguments (a sample) – The rule:

    • Expands agencies’ CWA jurisdiction without clear authorization from Congress.
    • Expands the definition of Jurisdictional Tributaries.
    • Is vague and fails to put regulated parties on notice of when their conduct would violate the law.
    • Fails to establish the precision and guidance necessary so that those enforcing the rule and making jurisdictional determinations do not act in an arbitrary or discriminatory way.
    • The establishment of geographic distance as a Jurisdictional Determinant.

B.  What to consider if you are planning a project that may affect a WOTUS

  • Permit applications, etc., that must be submitted now will have WOTUS-related decisions based on the pre-2015 rule, policy, and guidance.
  • Future projects, and possibly even CWA section 404 “fill” projects that are completed before the 2015 rule (or other future rule) goes into effect, may have new water bodies deemed to be WOTUS, perhaps retroactively.
  • It is worth spending some time in the early project planning stage to determine if there are any “jurisdictional by rule” or possible “jurisdictional due to significant nexus” waters within or near the project boundaries.

Future projects, and possibly even CWA section 404 “fill” projects that are before the 2015 rule (or other future rule) goes into effect, may have new water bodies deemed to be WOTUS, perhaps retroactively.

C. What’s Next?

At the moment, it appears that a hearing on the merits of the rule will occur in the Sixth Circuit. Several district and at least one circuit court have found that challengers were likely to prevail on their claims, suggesting that the 2015 Rule may not withstand scrutiny on the merits. However the case is ultimately decided, we anticipate that the unsuccessful participants will seek review by the Supreme Court. With the ninth seat of the Supreme Court still vacant, the fate of the rule once it reaches the Supreme Court is impossible to predict.

On the legislative and political fronts, the Senate passed a resolution last November aimed at repealing the 2015 rule[17] In January, the House also voted to block the rule. [18]President Obama then vetoed this resolution, which the Senate was unable to override. [19]Since then, there have been other congressional efforts to block the 2015 rule through other legislation. In July 2015, the House Oversight Committee began investigating the rulemaking.

Recently (June 15, 2016), the House Oversight Chairman moved to hold the White House in contempt due to its alleged failure to provide WOTUS rulemaking-related documents that the House Committee subpoenaed nearly a year ago. In response, while calling the subpoena “incredibly broad,” OMB’s Office of Information and Regulatory Affairs turned over another 13,000 pages of documents to the Committee, promising the remainder of the documents within a week.[20] By the time the dust settled (at least temporarily) on this specific issue, the Administration had turned over more than 50,000 pages of documents (albeit many of them reportedly heavily redacted), and the Oversight Committee decided to delay its contempt vote at least until it returned after the Independence Day recess.

Perhaps the only thing that may be relatively certain due to the current election cycle is that the outcome of the November elections is likely to guide future legislative and regulatory actions regarding the 2015 rule.

  1. The FWPCA of 1972 was later modified and renamed the “Clean Water Act” (“CWA” or “the Act”).
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  2. The preamble to the final WOTUS rule, prepublication version, is available on the web here. Published in the Federal Register on 6/29/2015.
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  3. See 33 CFR 328.3 and 40 CFR 122.2.
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  4. Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC), and Rapanos v. United States, 547 U.S. 715 (2006) (Rapanos).
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  5. Unless specifically noted otherwise, most of this summary of the 2015 Rule is adapted from (mainly by shortening) EPA and the Army Corps’ Rule to Define “Waters of the United States,” Congressional Research Service, Jan. 4, 2016; available a thttps://www.fas.org/sgp/crs/misc/R43455.pdf.
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  6. Wading Through EPA’s Clean Water Rule (a/k/a WOTUS) and Trying to Stay Dry,” Susan Floyd King, in News for the Environmental Professional, May 2016; available at here (pages 5-8).
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  7. Supreme Court Justice Kennedy in the 2006 Rapanos case.
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  8. Environmental Protection Agency and Department of Defense, Final Rule: Clean Water Rule: Definition of “Waters of the United States,” case number 15-3751, in the U.S. Court of Appeals for the Sixth Circuit. The most recent decision was issued on February 22, 2016, granting jurisdiction to the 6th Circuit to hear the merits.
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  9. EPA’s Clean Water Rule Litigation Statement, available here.
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  10. Environmental Protection Agency and Department of Defense, Final Rule: Clean Water Rule: Definition of “Waters of the United States” Case: 15-3751, Document: 92-1; decision filed: 04/21/2016.
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  11. See, for example, North Dakota et al., v. U.S. Environmental Protection Agency et al., case number 3:15-cv-00059, in U.S. District Court for the District of North Dakota, and Georgia v. McCarthy, 11th Cir., No. 15-14035, 9/10/15.
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  12. North Dakota v. EPA, D.N.D., No. 15-00059, order 5/24/16.
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  13. CWA § 509(b)(1) is USCA § 1369(B)(1).
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  14. DOJ brief in Georgia v. McCarthy, 11th Cir., 15-14035, filed 5/31/16.
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  15. Georgia v. McCarthy No. CV 215-70, 2015 WL 5092568 (S.D. Ga. Aug. 27, 2015).
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  16. Much, but not all, of this listing of issues was taken from information provided during the NAEP webinar on the “CWA Jurisdiction Rule Litigation” (1/20/2016).
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  17. Just Hours after a Separate Attack Failed, the Senate Voted to Overturn the EPA’s Clean Water Rule”; CLIMATEPROGRESS, 11/4/2015; available here.
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  18. “House Votes to Overturn Obama Water Rule 11/4/2015”; The Hill, 1/13/2016; available here.
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  19. Senate Fails to Override Obama Veto; The Hill, 1/21/2016; available here.
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  20. “WOTUS, There partner: House Oversight Ready to Hold Obama in Contempt and Still waters run deep, but rapids sink canoes,” Politico Morning Energy 6/20/2016; available here.
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The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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