The Clean Water Rule, recently promulgated by the United States Environmental Protection Agency (USEPA) and the United States Army Corps of Engineers (Corps), continues to generate controversy, confusion and regulatory uncertainty. Following decades of rulemakings and legal challenges over the scope of the Clean Water Act’s (CWA) jurisdiction, the Clean Water Rule is the most recent administrative attempt to define what constitutes “waters of the United States,” the term Congress used to set the jurisdictional threshold for regulation under the CWA. Published on June 29th, 2015with an effective date of August 25th, 2015, the rule sets forth six categories of waters and waterbodies regulated under the CWA, and also listed natural and man-made features that are specifically exempted from regulation. (See our earlier post for a more detailed discussion of the Clean Water Rule).
Unfortunately, the regulatory framework of the Clean Water Rule has preciptated further controversy and litigation. Twenty-eight states, various trade and business associations, individual companies and environmental groups sued to challenge the Clean Water Rule. The release of internal Corps memoranda questioning the legality of certain elements the final Clean Water Rule has encouraged litigants to pursue these challenges. Their cases have been filed in various federal district and appeals court around the country, creating uncertainty as to how and when those challenges may be resolved, and thus, whether entities should use the Clean Water Rule’s new jurisdictional analysis in their planning.
A number of these lawsuits have been consolidated in the Sixth Circuit Court of Appeals. However, as of last week, several cases were pending in federal district courts. Two of those district courts (Southern District of Georgia and Northern District of West Virginia) just ruled that jurisdiction over suits challenging the Clean Water Rule resides exclusively in the Circuit Court of Appeals and dismissed those cases for lack of jurisdiction.
Meanwhile, a federal district court in North Dakota not only ruled that it retains jurisdiction over a challenge to the Clean Water Rule, but proceeded to enjoin the rule’s implementation. The court held that a preliminary injunction was warranted because, based on the record before it, the plaintiffs (13 states) would likely be able to prove that USEPA and the Corps “violated its Congressional grant of authority in its promulgation of the” Clean Water Rule and “had failed to comply with [the Administrative Procedures Act] when promulgating the” Clean Water Rule.
In response to this ruling, USEPA issued a statement that the agency interpreted the ruling as applicable only in the 13 states (North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming and New Mexico) that are plaintiffs in that case. The government will certainly appeal this ruling to the Eighth Circuit Court of Appeals, and seek to have the injunction dissolved and the case dismissed for lack of jurisdiction. In the meantime, as a result of this injunction and USEPA’s interpretation of its applicability, different jurisdictional standards now apply in different states.
Property owners and other regulated entities in those 13 states face continued uncertainty as to the scope of CWA jurisdiction. According to USEPA’s statement, the jurisdictional guidance issued by USEPA and the Corps in 2008 will remain in effect in those states pending resolution of that case. At this point, it not possible to determine how long that might take. USEPA and the Corps have offered no further guidance for persons filing permit applications or requesting jurisdictional determinations under the CWA. For instance, how will the Corps handle applications involving interstate waters extending between states that are and are not subject to the injunction (e.g., Louisiana and Arkansas)? If an applicant prepares and files an application relying on the 2008 guidance, will that applicant be required to prepare a new application if the injunction issued by the North Dakota federal district court is overturned before the permit issued?
Of course, suspending implementation of the Clean Water Rule nationally until all of these legal challenges have been resolved would remove much of the current confusion and uncertainty surrounding the Clean Water Rule. But, in the face of the increasing partisanship surrounding the Clean Water Rule, that sensible approach seems highly unlikely. Property owners and other regulated entities have been left without any clear regulatory guidance for navigating through these uncharted waters and, for the foreseeable future, will need to add these new complexities to an already complicated regulatory scheme when evaluating CWA jurisdictional issues.
Greenberg Traurig will continue to monitor judicial, administrative and legislative developments relating to the Clean Water Rule to assist our clients with responding to this evolving issue.