Last week, environmental groups, states, and cities filed three complaints in differing federal district court challenging The Navigable Waters Protection Rule: Definition of Waters of the United States (“WOTUS”) (“2020 WOTUS Rule”), which was published in the Federal Register on April 21, 2020, and is currently scheduled to become effective on June 22, 2020. Pursuant to the Supreme Court’s ruling in National Association of Manufacturers v. U.S. Dep’t of Defense, 138 S.Ct. 617, challenges to the 2020 WOTUS Rule must be brought in the federal district courts. The challenges, therefore, can and likely will simultaneously make their way through various circuits, perhaps with different results, dashing hopes that the 2020 WOTUS Rule would finally provide the regulated community with clarity and consistency regarding the scope of waters regulated under the Clean Water Act (“CWA”).
On April 29, 2020, eight environmental groups, including Conservation Law Foundation and the Natural Resources Defense Council, Inc., filed a case in the District of Massachusetts, Conservation Law Foundation et al. vs. Wheeler et al., Case No. 20-cv-10820, challenging the 2020 WOTUS Rule. The groups’ claims are focused on alleged non-compliance with the Administrative Procedures Act (“APA”), and the CWA. On the same day, an additional fourteen environmental groups, including Defenders of Wildlife and several members of the Water Keeper Alliance, challenged the 2020 WOTUS Rule in the District of South Carolina, Charleston Division, South Carolina Coastal Conservation League et al. v. Wheeler et al., Case No. 2:20-cv-01687. Similar to the Massachusetts case, the groups’ claims are focused on non-compliance with the APA. However, collectively, the environmental groups raise a number of CWA-related issues and concerns regarding the 2020 WOTUS Rule in their complaints, including but not limited to:
- The purported abandonment of science as a foundation for development of the 2020 WOTUS Rule;
- The elimination of the significant nexus test established by Justice Kennedy’s concurring opinion in Rapanos v. United States, 547 U.S. 715 (2006) (hereafter Rapanos);
- The alleged unlawful restriction of categories of jurisdictional waters;
- The alleged categorical exclusion of several water features as jurisdictional, including ephemeral streams and floodplain wetlands;
- The alleged narrowing of the “adjacent wetlands” category of jurisdictional waters;
- The establishment of definitions that the environmental groups assert are “fundamentally indeterminate;”
- The alleged inability of the defined term “typical year” to capture climate change-related modifications to precipitation patterns based on its backward looking definition;
- The alleged expansion of the waste treatment system exclusion;
- The 2020 WOTUS Rule’s alleged impact on water quality; and
- The 2020 WOTUS Rule’s alleged noncompliance with the structure, text, and purpose of the CWA as a whole.
Days later, on May 1, 2020, seventeen states, including California and New York, were joined by the District of Columbia and the City of New York to challenge the 2020 WOTUS Rule, this time in the Northern District of California, State of California et al. v. Wheeler et al., Case No. 3:20-cv-03005. Like the other two district court challenges, the states’ and cities’ claims are focused on alleged non-compliance with the APA. However, the complaint in State of California et al. v. Wheeler et al. suggests that the states and cities have broader concerns regarding the 2020 WOTUS Rule’s compliance with the CWA and its alleged inability to protect water quality. Many of the issues identified by the states and cities in their compliant are duplicative of those identified by environmental groups, with the addition of the following:
- The 2020 WOTUS Rule’s alleged contradiction of earlier versions of the WOTUS definition without new evidence to support changes;
- The 2020 WOTUS Rule’s alleged unreasonable reliance on the Rapanos plurality decision (authored by the late Justice Scalia) to exclude water features otherwise included under Justice Kennedy’s “significant nexus” standard;
- The 2020 WOTUS Rule’s alleged impact on interstate upstream water quality with which downstream states will need to contend and ultimately, remedy;
- The alleged financial burden associated with mitigating upstream out-of-state pollution imposed on individual states by the 2020 WOTUS Rule;
- The 2020 WOTUS Rule’s alleged failure to protect previously-regulated waters and wetlands, some of which can now receive unpermitted discharges; and
- The potential for increased costs to States associated with the alleged withdrawal of federal protections under the 2020 WOTUS Rule, and the resulting purported need for states and cities to incur the financial and administrative burdens associated with instituting or expanding their own water protection programs.
In 2015, the U.S. Environmental Protection Agency (“USEPA”) and the U.S. Army Corps of Engineers (“Corps”) (collectively, “Agencies”) adopted an iteration of the WOTUS definition (“2015 WOTUS Rule”) that was similarly subject to a number of legal challenges. Those challenges, which alleged that the rule stretched the WOTUS definition to its Constitutional limit, failed to comply with the requirements of the APA, and inappropriately interpreted the significant nexus test established by Justice Kennedy’s concurring opinion in Rapanos, resulted in the 2015 WOTUS Rule never becoming effective nationwide. Whether the 2020 WOTUS Rule will suffer a similar fate is yet to be seen.
Our full summary of the 2020 WOTUS Rule can be accessed here. We are continuing to track developments regarding the 2020 WOTUS Rule, and will continue posting updates as developments unfold.