EPA, Army Corps to Apply Pre-2015 Standard for Clean Water Act Jurisdiction

The U.S. Environmental Protection Agency and U.S. Army Corps of Engineers announced on September 3 that they have halted implementation of the Trump administration’s 2020 Navigable Waters Protection Rule (NWPR) and will interpret the “waters of the United States” definition as “consistent with the pre-2015 regulatory regime until further notice.” The agencies’ announcement follows an August 30 decision by the U.S. District Court for the District of Arizona that vacated the NWPR.

In that decision, U.S. District Court Judge Rosemary Márquez ruled that the NWPR needed to be both remanded and vacated due to “[t]he seriousness of the Agencies’ error in enacting the NWPR, the likelihood that the Agencies will alter the NWPR’s definition of ‘waters of the United States,’ and the possibility of serious environmental harm if the NWPR remains in place upon remand.”

The plaintiffs who challenged the 2020 rule are six tribes whose territories cover parts of Arizona, Washington, Minnesota and Wisconsin. Before the September 3 announcement, it was unclear how the agencies under the Biden administration would apply the court’s vacatur. Several other legal challenges to the 2020 rule are ongoing in federal courts in California, Colorado, South Carolina and Massachusetts. This past July, a South Carolina U.S. District Court issued a decision that remanded the 2020 rule to the agencies, but allowed it to stay in place until the agencies completed their planned rulemaking processes.

The agencies stated that they will continue to work “expeditiously” to move forward with their planned rulemakings to repeal the 2020 rule and replace it with a new standard. Until a replacement rule is finalized, they plan to apply the 1986 definition of “waters of the United States” along with agency guidance documents issued in 2001, 2003, 2007 and 2008 in response to U.S. Supreme Court decisions in Rapanos v. United States and Solid Waste Agency of Northern Cook County (SWANCC) v. United States.

Under this pre-2015 regulatory regime:

• “Waters of the United States” will encompass ephemeral streams, which the 2020 rule had removed from jurisdiction. This is a significant change for the arid West, where a majority of water features are ephemeral.
• The agencies will apply Justice Kennedy’s “significant nexus” test to determine on a fact-specific basis whether wetlands and tributaries are ”waters of the United States.” The 2020 rule had limited jurisdiction for wetlands to those with a direct surface water connection to a “water of the United States.” The significant nexus standard allows the agencies to determine whether a wetland or tributary is jurisdictional based on a broader range of potential connections or impacts to downstream or adjacent waters.

If you have questions or concerns about the final rule, please contact the authors of this Legal Alert listed at the right in the firm’s Environmental Law & Natural Resources practice group or your BB&K attorney.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts, facts specific to your situation or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information herein.