On August 27, 2015, Chief District Judge Ralph R. Erickson in the United States District Court for the District of North Dakota, Southeastern Division, granted a preliminary injunction sought by Arizona, eleven (11) western states, the New Mexico Environment Department, and the New Mexico State Engineer, to halt the enforcement of the new Clean Water Rule: Definition of Waters of the United States (the “Rule”) jointly promulgated by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE). The new Rule seeks to clarify the waters that constitute “waters of the United States” and, therefore, subject to EPA and USACE jurisdiction under the Clean Water Act.
Prior to the Rule, the definition of “waters of the United States” was derived from a plurality opinion and a concurring opinion in the Supreme Court case Rapanos v. United States, 547 U.S. 715 (2006), and a series of earlier Supreme Court cases. Under this authority, EPA and USACE generally asserted jurisdiction over traditional navigable waters, wetlands adjacent to traditional navigable waters, non-navigable tributaries of traditional navigable waters, navigable waters that are relatively permanent (water with tributaries that typically flow year-round or that at least have continuous seasonal flows), and wetlands directly abutting such tributaries. The law also allowed the federal government to exercise jurisdiction if the water or wetland at issue possessed a “significant nexus” to navigable waters.
The new Rule clarifies ambiguities in the interpretation and application of the earlier standard, but may expand federal jurisdiction in select areas, such as tributaries, vernal pools, and certain isolated and other waters. For example, the Rule defines “tributaries”, a previously undefined term. Tributaries are water features with beds, banks, ordinary high water marks, and other physical indicators of downstream flow. Those wetlands and open waters without beds, banks and high water marks might also constitute tributaries if they are sufficiently adjacent to jurisdictional waters. Western vernal pools are also captured under the Rule and defined as seasonal wetlands traditionally located in California and “associated with topographic depression, soils with poor drainage, mild, wet winters and hot, dry summers.” Isolated or “other” waters includes those with a “significant nexus” within the 100 year floodplain of a traditional navigable water, or interstate water, as well as waters with a significant nexus within 4,000 feet of jurisdictional waters. The Rule does expressly exclude certain types of ditches, artificially created lakes and ponds for farming in dry areas, and water filled depressions incidental to mining or construction activity.
In granting the preliminary injunction, the District Court found that the Rule impermissibly allows the regulation of waters that do not bear on the “chemical, physical, and biological integrity” of any navigable-in-fact water. Further, the Court noted that the Rule’s definition of tributary allows for the regulation of an area with a mere trace of water so long as “the physical indicators of a bed and banks and an ordinary high water mark” exist. The Court believed that the Rule’s definition of tributary would encompass a “vast number of waters that are unlikely to have a nexus to navigable waters within any reasonable understanding of the term.” The Court voiced concern about an EPA and USACE admission that the Rule would increase land subject to federal jurisdiction, by between 2.84 to 4.65 percent. Such an increase, the Court noted, would encroach on States’ traditional powers over land and water use and result in States losing sovereignty over intrastate waters that would become subject to the Clean Water Act under the Rule. The Court also found that the Rule would subject States to significant economic loss due to heightened permitting requirements and jurisdictional studies that could delay natural gas, oil, or water pipeline projects.
Shortly after the ruling, EPA and USACE issued a statement confirming that the new Rule will not apply in those states that successfully petitioned for the injunction. What this means is that the Rule’s new definition of “waters of the United States” will not apply in Arizona and the other western states that are part of the suit, for the time being. This is of importance for those considering development in areas that could fall under the purview of the new Rule. For now, the old rules still apply and you will not need to seek a permit from EPA and USACE if conducting activities in areas that were not “waters of the United States” under the old rules but may fall in to that category under the new Rule.
Authored by: Paul M. Tilley