10.26.2020 EPA Tries to Sink Environmental Groups Challenge to its Navigable Waters Rule
In late August, a South Carolina federal court was asked to rule in favor of EPA and the Army Corps of Engineers (Corps) and dismiss a Clean Water Act (CWA) lawsuit brought by environmental groups challenging EPA’s recent Navigable Waters Protection Rule (Rule). The Southern Environmental Law Center and other groups (together, “Environmental Groups”) complain the Rule vastly reduces areas formerly protected by the CWA in violation of the Administrative Procedures Act, the CWA, and United States Supreme Court precedent. The United States District Court for the District of South Carolina must now decide whether the case should go to trial or be dismissed.
The CWA prohibits discharging any pollutant to “navigable waters,” which means the “waters of the United States” (WOTUS) and non-jurisdictional waters that are conveyed downstream to jurisdictional waters. The scope of the definition of WOTUS is an issue courts and EPA have been wrestling with for years. In 2006, the Supreme Court ruled in Rapanos v. United States that the test for what is a WOTUS is whether the water has a “significant nexus” to a navigable water. The significant nexus test, however, proved confusing and open to conflicting interpretation. In 2015, the Obama-era EPA and the Corps adopted a rule to codify the “significant nexus” test and to clarify its reach. The 2015 rule broadened the scope of the CWA, using distance limitations to quantify a nexus. The 2015 rule was challenged in numerous courts across the country, and some courts determined it was arbitrary, without scientific foundation and, therefore, unlawful. EPA and the Corps under President Trump repealed the 2015 rule in 2017, reviving the 1986 regulations’ definition of WOTUS. This action was appealed, but it became effective in late 2019.
After years of conflicting court interpretations and internal shifts at EPA and the Corps, EPA and the Corps issued the Rule this past April. giving categorical listings of waters and wetlands that are now considered WOTUS, as well as those that are specifically excluded, including ephemeral streams and certain isolated wetlands. In their South Carolina lawsuit, the Environmental Groups contend the Rule contradicts Rapanos as to what can and cannot be considered WOTUS. The United States strongly disagrees, arguing in its pending motion to dismiss:
- EPA is entitled to deference in its interpretation of what constitutes WOTUS because the CWA is ambiguous;
- EPA correctly fixed the complicated and unclear “significant nexus” test used over the last 12 years to determine what is and what is not WOTUS;
- The Rapanos decision did not reject the interpretation adopted in the Rule;
- Contrary to the 2015 rule, the administrative record establishes extensive analysis supporting the new Rule, including sound science and responses to all comments;
- In limiting jurisdiction of the CWA to a defined group of waters and by excluding ephemeral streams and certain wetlands, the Rule provides certainty, reduces negative effects, and allows States and Tribes to regulate these excluded bodies as they see fit;
- The 2015 rule supported by the Environmental Groups was not based on sound science; and
- The exclusion of certain waste treatment systems from the definition of WOTUS, including some cooling ponds, is not new to the Rule and has been applied on a case-specific basis by EPA and the Corps to natural and manmade systems since 1980.
The main issue addressed in the United States’ motion to dismiss the case is whether the CWA’s general objective to preserve water quality overrides any discretion EPA or the Corps may have when determining what waters are subject to jurisdiction under the CWA. The motion claims the CWA does not require preservation “at any cost,” and, therefore, deference should be given to the Rule. While the motion provides numerous scientific analyses cited in the Rule to support the exclusion of ephemeral streams and certain isolated wetlands, it refutes the Environmental Groups’ argument “the CWA’s jurisdictional reach must be solely ‘driven by science.’” Expanding on this, the United States explains that an analysis of CWA jurisdiction requires a balancing of both legal and scientific considerations including: (1) the statutory limits on EPA’s and the Corps’ legal authority, and (2) CWA deference to state authority over certain waters including ephemeral streams and certain isolated wetlands.
Finally, the United States requests that, if the Court were to find that some provisions in the Rule are unlawful, it not vacate the entire Rule but, instead, address only those provisions. The United States says this is important because the overall purpose of the Rule is to provide certainty to the regulated community and the public. A complete vacatur would bring stakeholders back to 2006, with no clear picture as to what is and is not WOTUS. In this day of political unrest and a widening expanse between conservative and liberal groups, it is hard to imagine any certainty in newly-issued federal regulations or revisions to regulations. However, to its credit, the United States asks the U.S. District Court to do just that and allow some certainty to remain in the CWA arena.
South Carolina Coastal Conservation League, et al, v. Andrew R. Wheeler, Case No. 2:20-cv-01687-DCN (D.S.C., Charleston Division, 2020).
85 Red. Reg. 22250 (April 21, 2020) (Navigable Waters Protection Rule).