Vol. 50-2 Natural Resources

By Patrick Leahy and Neha Singh

Natural Resources

Rapanos and the New Definition of “Waters of the United States”

Introduction

The Clean Water Act (CWA) defines “navigable waters” as “the waters of the United States, including the territorial seas,” hereafter referred to as WOTUS.[1] Through the CWA, Congress directed the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) to protect “navigable waters.”[2] The Navigable Waters Protection Rule regulates these waters and the tributary systems that flow into them.[3] A clear definition of “waters of the United States” is necessary to determine the scope of federal jurisdiction over bodies of water and wetlands.[4] By redefining WOTUS, the rule restricts federal jurisdiction to only those waters that are sufficiently and visibly connected to traditionally navigable waters or seas.[5] This article discusses the reasoning behind the redefinition of WOTUS.

Background

The United States Supreme Court issued its opinion on WOTUS in Rapanos v. United States.[6] Justice Scalia, writing for a four-justice plurality, interpreted “waters of the United States” to include “only those relatively permanent, standing or continuously flowing bodies of water,” and only those wetlands with a “continuous surface connection” to jurisdictional bodies “so that there is no clear demarcation between ‘waters’ and wetlands.”[7] Essentially, the plurality held that an adjacent wetland is not within WOTUS just because that wetland has “a mere hydrologic connection” with the jurisdictional water.[8]

In his concurring opinion, Justice Kennedy took a different and broader interpretive approach. He stated that there is a “significant nexus” when tributaries or wetlands, “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity” of traditionally covered bodies of water typically understood as navigable.[9] This created the “significant nexus” test, which originates from a combination of the Court’s decisions in Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers and United States v. Riverside Bayview Homes, Inc.[10] The Court in SWANCC interpreted the Court’s decision in Riverside Bayview Homes as supporting a significant nexus theory: “it was the significant nexus between the wetlands and ‘navigable waters’ that informed [the Court’s] reading of the CWA in Riverside Bayview Homes.”[11] Rather than the surface-connection approach advanced by the plurality, Justice Kennedy articulated a test that gauges whether the wetlands that the EPA and the Corps’ seek to regulate have a significant enough negative impact on navigable waters.

But Justice Stevens—writing for the four-justice dissent—stated that the EPA and the Corps decided “that wetlands adjacent to tributaries of traditionally navigable waters preserve the quality of our Nation’s waters” and that EPA and the Corps’ decision “to treat these wetlands as encompassed within the term ‘waters of the United States’ is a quintessential example of the Executive’s reasonable interpretation of a statutory provision.”[12] The dissent declared that “waters” in “waters of the United States” is an ambiguous term, and the EPA and the Corps have “reasonably interpreted” federal jurisdiction to cover “nonisolated wetlands.”[13] Justice Stevens essentially eschewed a need for a separate test altogether, as long as federal jurisdiction over wetlands is reasonable under the CWA.

In 2015, in response to the Court’s interpretation of WOTUS in Rapanos, the EPA and the Corps provided a new basis for federal jurisdiction by applying Justice Kennedy’s “significant nexus” test in the clarifying document “Clean Water Rule: Definition of ‘Waters of the United States.’”[14] In support of Justice Kennedy’s test, the EPA and the Corps used the EPA’s “Connectivity Report,” a synthesis of 1,200 peer-reviewed articles on hydrologic connection.[15] According to the EPA and the Corps’ interpretation of the “significant nexus” test, waters under federal jurisdiction included ephemeral tributaries, their adjacent wetlands, and other waters that EPA and the Corps decided were jurisdictional using a categorical or case-by-case basis.[16] The 2015 Clean Water Rule addressed the major issue in Rapanos: can the connection between jurisdictional waters and adjacent wetlands be underground?  The EPA and the Corps incorporated certain accepted scientific principles of hydrology into the definition of jurisdictional waters and rejected the surface-connection theory as stated by the plurality in Rapanos.[17] 

Developments since Rapanos

In February 2017, President Trump issued an Executive Order directing the EPA and the Corps to conduct a rulemaking in order to redefine CWA jurisdiction “in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States.”[18] On October 22, 2019, the EPA and the Corps published a final rule to repeal the 2015 rule defining “waters of the United States.”[19] The final rule repealing the 2015 rule was published in the Federal Register on October 22, 2019, and became effective on December 23, 2019.[20]

On January 23, 2020, the EPA and the Corps finalized the new “Navigable Waters Protection Rule,” redefining WOTUS to comply with the president’s order, which became effective on June 22, 2020.[21] The final rule excludes from the definition of WOTUS, “groundwater, including groundwater drained through subsurface drainage systems; ephemeral features that flow only in direct response to precipitation, including ephemeral streams, swales, gullies, rills, and pools” and “waste treatment systems,” among others.[22] More generally, the rule states that federal jurisdiction will be restricted to those waters and wetlands that “maintain a sufficient surface water connection to traditional navigable waters or the territorial seas.”[23] This is the end, for now, of the “significant nexus” test within the CWA. Rather than a hydrological or ecological connection, the only connection that will allow for federal regulation over other waters and wetlands is one that is surface level.

In the final rule, the EPA and the Corps assert that “ensuring that States and Tribes retain authority over their land and water resources […] helps carry out the overall objective of the CWA and ensures that the agencies are giving full effect and consideration to the entire structure and function of the Act.”[24] The EPA and the Corps cite Justice Scalia’s opinion in Rapanos in support: “clean water is not the only purpose of the statute. So is the preservation of primary state responsibility for ordinary land-use decisions.”[25] While clean water may not be the only purpose of the CWA, it is arguably the primary one. However, because the EPA and the Corps “recognize that science cannot dictate where to draw the line between Federal and State waters,” perhaps ensuring clean water through scientific processes has become less important.[26]

While this new rule recently became effective, how it is implemented will most certainly be influenced by the Supreme Court’s recent decision in County of Maui v. Hawaii Wildlife Fund interpreting Rapanos and establishing the “functional equivalent” test for indirect discharges into WOTUS.[27]

Patrick Leahy is an Associate at Baker Botts (Austin) and works on a variety of environmental litigation matters at the administrative, state, and federal levels, permitting, regulatory compliance, and transactional support matters.

Neha Singh is a second-year student at The University of Texas School of Law and a staff member of the Texas Environmental Law Journal.

 

[1]               33 U.S.C. §1362(7).

[2]               Definition of “Waters of the United States” under the Clean Water Act, Envtl. Prot. Agency, https://www.epa.gov/cwa-404/definition-waters-united-states-under-clean-water-act (last visited Feb. 18, 2020).

[3]               Id. 

[4]               See Solid Waste Agency of Northern Cook Cty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001); see also United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 134 (1985).

[5]               The Navigable Waters Protection Rule: Definition of “Waters of the United States,” 85 Fed. Reg. 22,250 (Apr. 21, 2020) (to be codified at 33 C.F.R. pt. 328 and 40 C.F.R. pts. 110, 112, 116, 117, 120, 122, 230, 232, 300, 302, and 401).

[6]               Rapanos v. United States547 U.S. 715 (2006).

[7]               Id. at 739.

[8]               Id. at 740.

[9]               Id. at 780.

[10]             See Solid Waste Agency of Northern Cook Cty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 134 (1985).

[11]             SWANCC, 531 U.S. at 167 (2001).

[12]             Rapanos, 547 U.S. at 788.

[13]             Id. at 798.

[14]             See Clean Water Rule: Definition of “Waters of the United States,” 80 Fed. Reg. 37,054 (June 29, 2015) (to be codified at 33 CFR pt. 328 and 40 CFR pts. 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401).

[15]             Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific EvidenceEnvtl. Prot. Agencyhttps://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=296414, (last visited May 22, 2020).

[16]             Clean Water Rule, 80 Fed. Reg. at 37,056.

[17]             Amy Kelly, Waters and Water Rights § 61.03 (Matthew Bender eds., 3rd ed. 2020).

[18]             Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule, White House (Feb. 28, 2017), https://www.whitehouse.gov/ presidential-actions/presidential-executive-order-restoring-rule-law-federalism-economic-growth-reviewing-waters-united-states-rule/.

[19]             Definition of “Waters of the United States” under the Clean Water Act, U.S. Envtl. Prot. Agency, https://www.epa.gov/cwa-404/definition-waters-united-states-under-clean-water-act (last visited Feb. 18, 2020).

[20]             Definition of “Waters of the United States”—Recodification of Pre-Existing Rules, 84 Fed. Reg. 56,626 (Oct. 22, 2019) (to be codified at 33 C.F.R. pt. 328 and 40 C.F.R. pts. 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401). 

[21]             Final Rule: The Navigable Waters Protection Rule, Envtl. Prot. Agency, https://www.epa.gov/nwpr/final-rule-navigable-waters-protection-rule (last visited Feb. 18, 2020); see Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule, White House (Feb. 28, 2017) https://www.whitehouse.gov/presidential-actions/presidential-executive-order-restoring-rule-law-federalism-economic-growth-reviewing-waters-united-states-rule/.

[22]             The Navigable Waters Protection Rule: Definition of “Waters of the United States,” 85 Fed. Reg. 22,250 (Apr. 21, 2020) (to be codified at 33 C.F.R. pt. 328 and 40 C.F.R. pts. 110, 112, 116, 117, 120, 122, 230, 232, 300, 302, and 401).

[23]             Id. at 22,259.

[24]             Id. at 22,320.

[25]             Id.; Rapanos, 547 U.S. at 755–56.

[26]             Navigable Waters Protection Rule, 85 Fed. Reg. at 22,292.

[27] Cty. of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020).