waters of the United States
Well, it’s been a while since we’ve written about the Waters of the United States (WOTUS), so everyone had to know we were overdue for WOTUS news!
On December 11, 2018, the Environmental Protection Agency (EPA) and the Army Corps of Engineers announced the Trump Administration’s so-called “straightforward” new definition of WOTUS under the Clean Water Act (CWA). Publication of the proposed rule was delayed due to the federal government shutdown in December and January. The proposed rule was finally published in the Federal Register on February 14, 2019. Interested parties can comment on the proposed WOTUS rule until April 15, 2019. Information on how to comment can be found here, and the proposed rule in its entirety can be found here.
Out with the old WOTUS…
The new definition would replace the 2015 definition of WOTUS promulgated under the Obama Administration. The 2015 definition is codified at 33 CFR 328. The 2015 definition defined waters of the United States as:
- All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
- All interstate waters including interstate wetlands;
- All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:
- Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
- From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
- Which are used or could be used for industrial purpose by industries in interstate commerce;
- All impoundments of waters otherwise defined as waters of the United States under the definition;
- Tributaries of waters identified in paragraphs (a) (1) through (4) of this section;
- The territorial seas;
- Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a) (1) through (6) of this section.
- Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with the EPA.
The 2015 definition also noted that “[w]aste treatment systems, including treatment ponds or lagoons designed to meet requirements of CWA…are not waters of the United States” (emphasis added).
...In with the new WOTUS
The Trump Administration’s new proposed definition of WOTUS would make significant changes to the definition listed above. Under the new proposed rule, section (a) of §328.3 would define waters of the United States as:
- Waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including the territorial seas and waters which are subject to the ebb and flow of the tide;
- Tributaries of waters identified in paragraph (a)(1) of this section;
- Ditches that satisfy any of the conditions identified in paragraph (a)(1) of this section, ditches constructed in a tributary or that relocate or alter a tributary as long as those ditches also satisfy the conditions of the tributary definition, and ditches constructed in an adjacent wetland as long as those ditches also satisfy the conditions of the tributary definition;
- Lakes and ponds that satisfy any of the conditions identified in paragraph (a)(1) of this section, lakes and ponds that contribute perennial or intermittent flow to a water identified in paragraph (a)(1) of this section in a typical year either directly or indirectly through a water(s) identified in paragraphs (a)(2) through (6) of this section or through water features identified in paragraph (b) of this section so long as those water features convey perennial or intermittent flow downstream, and lakes and ponds that are flooded by a water identified in paragraphs (a)(1) through (5) of this section in a typical year;
- Impoundments of waters identified in paragraphs (a)(1) through (4) and (6) of this section; and
- Adjacent wetlands to waters identified in paragraphs (a) (1) through (5) of this section.
Every other type of water in this proposed definition relates back to the waters described in (1), which the EPA describes as “traditional navigable waters.” For example, tributaries that are WOTUS would be those bodies of water that empty into or connect to traditional navigable waters. Similarly, lakes and ponds are WOTUS under the definition if they are traditional navigable waters themselves, or if they flow regularly into traditional navigable waters. An EPA fact sheet, available here, is very helpful in understanding what is included under the proposed WOTUS definition. It describes the six proposed categories of WOTUS in layman’s terms, and provides examples of bodies of water that fall under each category.
The newly proposed rule also greatly expands the list of waters that are not waters of the United States in section (b):
- Waters or water features that are not identified in paragraphs (a) through (6) of this section;
- Groundwater, including groundwater drained through subsurface drainage systems;
- Ephemeral features and diffuse stormwater run-off, including directional sheet flow over upland;
- Ditches that are not identified in paragraph (a)(3) of this section;
- Prior converted cropland;
- Artificially irrigated areas, including fields flooded for rice or cranberry growing, that would revert to upland should application of irrigation water to that area cease;
- Artificial lakes and ponds constructed in upland (including water storage reservoirs, farm and stock watering ponds, and log cleaning ponds) which are not identified in paragraph (a)(4) or (a)(5) of this section;
- Water-filled depressions created in upland incidental to mining or construction activity, and pits excavated in upland for the purpose of obtaining fill, sand, or gravel;
- Stormwater control features excavated or constructed in upland to convey, treat, infiltrate or store stormwater run-off;
- Wastewater recycling structures constructed in upland, such as detention, retention and infiltration basins and ponds, and groundwater recharge basins; and
- Waste treatment systems.
Notable differences between 2015 rule and proposed rule
Just glancing at the two rules, it is obvious that there are major differences in how WOTUS is defined. EPA has a useful fact sheet (highly recommended reading) outlining the “key proposed changes” and how they compare to the 2015 WOTUS rule, as well as to the pre-2015 WOTUS rule. Overall, it appears that the number of water bodies considered WOTUS would decrease under the proposed rule. EPA argues that limiting the number of waters classified as WOTUS would give more power to the states to regulate waters as they see fit.
One major change is that under the proposed rule, tributaries that are “ephemeral” (meaning they’re not around for a great deal of time, and/or may be there because of rainfall or snowmelt, etc.), are not considered to be WOTUS. Similarly, the number of ditches considered to be WOTUS would decrease under the new rule. Upland ditches and ephemeral ditches would no longer fall under WOTUS. The number of wetlands considered WOTUS would also take a hit under the new rule. Wetlands would either have to “abut” other WOTUS or “have a direct hydrological surface connection” to WOTUS in a “typical year” to fall under the new definition. Furthermore, wetlands would no longer be considered to be “adjacent,” and therefore connected to WOTUS, if they are “physically separated from jurisdictional waters by a berm, dike, or other barrier.” Finally, you guessed it— the number of lakes and ponds considered WOTUS would also be reduced, since they would no longer connect through “adjacent” wetlands.
It’s important to remember that this new WOTUS rule is not currently effective—they are just proposed rules, open to public comment. In the meantime, due to litigation, what qualifies as WOTUS depends on which state you live in, as we discussed in Harvest posts here and here. EPA has a map depicting which definition of WOTUS currently applies where—in some states, the 2015 rule applies, and in others the pre-2015 rule applies. Obama’s 2015 rule applies in Ohio at this time. If the proposed rule makes it through the rulemaking process and goes into effect, it will replace the 2015 and pre-2015 rules, and barring any other lawsuits, will apply nationwide. The ultimate implementation of this rule is anything but certain; changes and challenges to the rule are likely to occur. The Ag Law Blog will keep readers updated on all the WOTUS discussion yet to come.
Written by: Ellen Essman, Sr. Research Associate, and Evin Bachelor, Law Fellow
Here’s our latest gathering of agricultural law news that you may want to know:
GIPSA as we know it is no more. A rule was released November 29, 2018 by the USDA as part of the Trump administration’s ongoing efforts to reorganize the agency. Of particular note, the rule, which was published in the Federal Register, eliminates the Grain Inspection, Packers and Stockyards Administration (GIPSA) as a “stand-alone agency.” According to the GIPSA website (which is currently still available here), the agency “facilitate[d] the marketing of livestock, poultry, meat, cereals, oilseeds, and related agricultural products, and promote[d] fair and competitive trading practices for the overall benefit of consumers and American agriculture.” The new administrative rule relocates GIPSA responsibilities to the Agricultural Marketing Service (AMS) Administrator. The change is not without controversy, as some farmers and agricultural groups argue that the protection of farmers through fair trading practices is antithetical to AMS, an agency responsible for marketing and promoting commodities. The rule is available here.
Supreme Court considers when habitat is “critical habitat” under the Endangered Species Act. The Supreme Court of the United States ruled in favor of private landowners when it recently determined that protected "critical habitat" for an endangered species must be habitat in which the species could actually survive. The Court's decision in Weyerhaeuser Co. v. United States Fish and Wildlife Service et al involved the dusky gopher frog, an endangered species that once lived throughout the coastal regions of Alabama, Louisiana, and Mississippi. Some of the habitat deemed by the U.S. Fish & Wildlife Service to be protected "critical habitat" for the frog was not actually occupied by the frog, and was instead being used for commercial timber production. Weyerhaeuser and other affected landowners brought suit, claiming that the land couldn't be critical habitat because the frog could not survive there without significant human intervention, such as intensive tree planting. The Court agreed that critical habitat "cannot include areas where the species could not currently survive." Weyerhouser and other landowners had also challenged the agency's cost-benefit analysis for the critical habitat designation, but the Fifth Circuit Court of Appeals disagreed and stated that it had no power to review the FWS analysis. The Supreme Court disagreed, stating that federal courts can review an agency's economic impact analysis to determine whether the agency abused its discretion or was arbitrary and capricious. With that guidance, the Supreme Court remanded the case back to the Fifth Circuit for further proceedings. The Supreme Court’s decision is here.
A second judge finds that Trump’s WOTUS repeal was not procedurally sound. Surprise, surprise, the WOTUS, or “waters of the United States” rule is in the news again. In many previous blog posts, we have chronicled decisions on the ever-present WOTUS rule (search “WOTUS” in our search bar for our other posts). Readers will recall that last February, the Trump administration published a new rule which was meant to repeal Obama’s WOTUS rule and replace it with the pre-2015 definition of WOTUS until a new definition could be developed. Trump’s rule was published on February 6, 2018, giving the administration until 2020 to come up with a new definition. On August 16, 2018, a district court judge in South Carolina found that the Trump administration did not comply with the requirements of the Administrative Procedure Act (APA) when it enacted the February 6 rule. Similarly, on November 26, 2018, Judge John Coughenour in the Western District of Washington found that “by restricting the content of the comments solicited and considered [about the February rule], the Agencies deprived the public of a meaningful opportunity to comment on relevant and significant issues in violation of the APA’s notice and comment requirements.” Rulemaking that violates the APA is invalid. Judge Coughenour’s full decision is available here.
Both the South Carolina and the Washington state district court decisions are applicable to the entire country. As a result, one might think that the Obama WOTUS rule should be in effect nationwide. However, it is important to remember that in some states, there are injunctions against carrying out Obama’s WOTUS rule. This means that it cannot be carried out in those states, and that the pre-2015 rule is actually effective in those states. EPA has a map depicting which version of the rule applies where. Uncertainty and WOTUS seem to be synonymous these days. The only thing we know for certain is that the WOTUS saga is not over, meaning things are likely to change again in the future.
Ohio Treasurer pioneers paying taxes with Bitcoin. Any business operating in Ohio may now pay certain taxes to the state of Ohio using Bitcoin, as recently announced by outgoing Ohio Treasurer Josh Mandel. The move makes Ohio the first state to accept Bitcoin as a form of tax payment. The official press release expressed hopes that other cryptocurrencies could be used, but at this time only Bitcoin will be accepted. Cryptocurrencies are said to be secure because they use blockchain, which is a digital register of transactions and information that is difficult to modify because changes to the register cannot be done by any single user. The Treasurer’s Office has specified 23 different taxes that can be paid with cryptocurrencies, including: Commercial Activity Taxes (CAT), consumer’s use taxes, Interest on Lawyers Trust Accounts (IOLTA) taxes, Pass-Thru Entity (PTE) taxes, sales taxes, and more. Paying with cryptocurrency is being accepted as an additional form of payment, as businesses can still pay with ACH credit, ACH debit, check, and money order. However, the state will not keep the cryptocurrency, but instead will use a third party to cash out the Bitcoin and convert it into U.S. dollars before depositing them into the state’s account. For more information, visit www.OhioCrypto.com or view the Treasurer’s Frequently Asked Questions page here.
Bayer prepares to bear with multiple jury trials over Monsanto’s glyphosate. Bayer AG continues to battle more and more plaintiffs claiming that their health problems were caused as a direct result of Monsanto’s Roundup and glyphosate. Another 600 plaintiffs have reportedly sued Bayer/Monsanto in the past two months since we last reported the number of lawsuits initiated with this argument. Following the multi-billion dollar verdict in California state court late this summer, more jury trials are set to begin. Over 620 cases have been filed in federal court, and the first case to reach a federal jury is now set for trial in San Francisco in February 2019. Another California state court case has been fast-tracked to be heard in March 2019 because of the condition and age of the plaintiffs. Yet another case is expected to be scheduled in Missouri state court for sometime later in 2019. The cases largely depend upon a plaintiff’s ability to convince a jury that his or her cancer was more likely than not directly caused by glyphosate. This question because controversial in 2015 when the United Nation’s World Health Organization released a report stating that the widely used herbicide is “probably carcinogenic to humans.” However, the U.S. Environmental Protection Agency issued a release in 2017 saying that its own findings demonstrate that glyphosate is unlikely to be carcinogenic in humans.
Is this pumpkin pie made of pumpkin? Thanksgiving dinner conversations often involve at least one debate for many families. Prompted by recent coverage in news outlets like the Wall Street Journal, one of the topics this year was whether grandma’s pumpkin pie is made of pumpkin, and whether it should be. At one end of the debate are those who say that pumpkin pie must be made from pumpkins, while others say that closely related squashes have a better flavor and consistency that make a pie taste the way a “pumpkin pie” should taste. Central to this debate is the status of firm-shelled, golden-fleshed sweet squash, which currently makes up a large portion of the market for “canned pumpkin.” The U.S. Food and Drug Administration (FDA) has a long-standing policy saying that labeling the golden-fleshed, sweet squash as “pumpkin” complies with the Food, Drug, and Cosmetic Act and the Fair Packaging and Labeling Act. Since 1938, the FDA has “consistently advised canners that we would not initiate regulatory action solely because of their using the designation “pumpkin” or “canned pumpkin” on labels for articles prepared from golden-fleshed, sweet squash, or mixtures of such squash with field pumpkins.” The FDA explains that allowing current labeling practice does not seem to mislead or deceive consumers. While the FDA declines to take a stand on the issue, families are free to continue to debate which ingredients make for the best pumpkin pie.
Written by Ellen Essman, Sr. Research Associate
Here’s our gathering of recent agricultural law news you may want to know:
Kasich’s Executive Order delayed. As we previously wrote about, Governor John Kasich signed an executive order earlier this month which directed ODA to “consider whether it is appropriate to seek the consent of the Ohio Soil and Water Commission (OSWC) to designate” certain watersheds “as watersheds in distress due to increased nutrient levels resulting from phosphorous attached to soil sediment.” The OSWC voted on July 19 to delay Kasich’s executive order, which means that the eight watersheds will not be labeled “watersheds in distress” at this time. Instead, a subcommittee of the OSWC is tasked with researching and determining if each of the watersheds should be listed as “watersheds in distress.” More information on this delay is available in Ohio’s Country Journal.
ODA to submit “Watersheds in Distress” rule package. In more news regarding “watersheds in distress,” ODA is expected to propose a new rule package. While rules concerning watersheds in distress already limit the land application of manure on farms, the new rules would also limit the application of “nutrients,” which are defined as “nitrogen, phosphorus, or a combination of both.” Stay tuned to the Ag Law Blog for any updates on this rule package!
ODA upgrades website. The Ohio Department of Agriculture updated its website last month. The update includes a section with frequently asked questions and answers for each of the separate Divisions. For example, the questions frequently asked about food safety, making and selling food are available here. Head to www.agri.ohio.gov to check it out the new ODA website.
Additional comments sought on WOTUS. On July 12, 2018, the Army Corps of Engineers and the EPA published a supplemental notice of proposed rulemaking in the Federal Register. The supplemental notice is meant to “clarify, supplement and seek additional comment on” last summer’s proposal to repeal the 2015 Waters of the United States (WOTUS) Rule. As a reminder, the 2015 WOTUS rule expanded the meaning of “waters of the United States,” or those waters protected under the Clean Water Act, to include “tributaries to interstate waters, waters adjacent to interstate waters, waters adjacent to tributaries of interstate waters and other waters that have a significant nexus to interstate waters.” If the 2015 WOTUS rule is repealed, then the pre-2015 regulations defining WOTUS will be recodified. The agencies are seeking additional comments on the proposed rulemaking through this supplemental notice. The comment period is open through August 13, 2018. Comments can be left here.
Ohio legislation on the move
- Dogs on patios. H.B. 263, which we have been following, was sent to the Governor on 7/24/2018. Kasich’s signature would mean that food establishments and food service operations could permit customers to bring a dog into an outdoor dining area if the dog is vaccinated. Each establishment must adopt a policy requiring customers to control their dogs and to keep their dogs out of indoor areas. See our previous coverage of this legislation here and here.
The U.S. Supreme Court ruled earlier this week in National Association of Manufacturers v. Department of Defense that a federal district court is the proper forum for challenges to the substance of the “Waters of the United States” (WOTUS) rule. The holding brings clarification for parties raising similar types of challenges under the federal Clean Water Act, who often filed cases in both the district and appellate courts due to confusion over which court has jurisdiction over the cases. Litigants can now be sure that the case should originate with the federal district court, which provides greater access for similar challenges but could create more inconsistent rulings around the country. The court’s decision arrives at an odd time, with the evolving WOTUS landscape now focused on formulation of a new WOTUS rule to replace the rule that is under fire.
The court’s reasoning
The Supreme Court’s decision in this case is not surprising, a result of attention to the express language of the Clean Water Act rather than to several interpretations advanced by the government. The Clean Water Act places authority over Clean Water Act challenges in the federal district courts, with seven exceptions that are to be heard by the appellate courts. The federal government argued that two of those exceptions applied to its drafting of the WOTUS rule. The court disagreed, concluding that WOTUS does not establish an “effluent limitation” nor does it result in the issuance or denial of a permit as argued by the government. The court recognized that it would likely be more efficient and uniform for such challenges to be heard by an appellate court, but that would require a rewriting of the statute.
WOTUS uncertainty remains
The Supreme Court sent the case back to the Sixth Circuit Court of Appeals with an order to dismiss the WOTUS petitions before that court, which consisted of all appellate cases challenging the rule that were previously transferred to the Sixth Circuit by the Judicial Panel on Multidistrict Litigation. Note that the Sixth Circuit had issued a nationwide stay of the WOTUS rule in 2015 pending determination of whether the rule was a valid exercise of agency authority. That stay will presumably disappear with the Sixth Circuit’s dismissal of the case, but some claim that the Sixth Circuit could seek to continue to enforce the nationwide stay. A federal district court in North Dakota had previously issued an injunction against the WOTUS rule in North Dakota and a dozen other states, so that injunction would continue to prevent implementation of the rule in those states if the Sixth Circuit removes its stay.
Further complicating the status of the WOTUS rule are the actions taken by the Trump administration, which issued a proposed rule last November to delay the rule’s effective date to 2020 and a second proposal last February to replace WOTUS with the rule that was in place previously while the EPA develops a new definition of WOTUS. The EPA has not finalized either of those rules. The federal district courts with WOTUS cases currently before them could choose to stay their cases pending the current administration’s rulemaking process. Alternatively, one of the federal district courts could issue a nationwide injunction against the rule.
Consistent with its history, WOTUS remains unclear. Agricultural interests will have to continue to wait and see what happens next.
Written by Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program
On June 27, 2017, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) announced their plan to repeal the Obama Administration’s Waters of the United States (WOTUS) Rule. The EPA and the Corps’ proposal involves two steps. First, the agencies propose to “rescind” Obama’s WOTUS rule and “re-codify,” or re-enter, the definition of WOTUS “that existed prior to 2015” into the federal regulations. The pre-2015 rule would serve as a placeholder until the agencies are able to carry out the second part of their plan. The second part of the plan involves developing and proposing a new definition of WOTUS. This announcement comes several months after President Trump called for either a repeal or revision of the WOTUS Rule in his February 28, 2017 Executive Order (EO). The EO was quickly followed by the EPA and other agencies filing a Notice of Intention to Review and Rescind or Revise the Clean Water Rule (Notice). The EO can be found here, and the Notice here.
What was the Obama Administration’s WOTUS Rule?
The WOTUS Rule went into effect on August 28, 2015. The Rule expanded the meaning of “waters of the United States,” or those waters protected under the Clean Water Act (CWA), to include “tributaries to interstate waters, waters adjacent to interstate waters, waters adjacent to tributaries of interstate waters, and other waters that have a significant nexus to interstate waters.” Furthermore, the Rule stated that tributaries are WOTUS when they flow into navigable waters, even if their flow was not constant. The rule also elaborated on the meaning of “adjacent waters.” For more information about the WOTUS Rule, see our blog post from earlier this year. The Rule as it was released in the summer of 2015 can be found here.
How will “Waters of the United States” be defined?
In the short term
Step one of the EPA and the Corps’ plan calls for a repeal of the Obama Administration’s definition of WOTUS, and a reimplementation of the WOTUS rule that existed prior to 2015. In order to do this, the agencies are proposing a rule. The proposed rule calls for the Code of Federal Regulations—in particular, 33 C.F.R. §328.3, to be amended to reflect the previous definition of WOTUS. Notably, this definition does not include the Obama Administration’s expanded descriptions of “tributaries” or “adjacent waters.” Furthermore, there is no mention of “significant nexus.” This interim definition of WOTUS proposed by the EPA and the Corps can be found in the proposed rule, here.
In the long term
The second step of the EPA and the Corps’ plan calls for the agencies to perform a “substantive re-evaluation” of the definition of WOTUS. Any re-evaluation of the definition will likely take Trump’s EO into account, which called for the EPA and other agencies to, in any “[f]uture [r]ulemaking,” “consider interpreting the term ‘navigable waters’” as Justice Scalia did in Rapanos v. U.S. The CWA defines “navigable waters” as “waters of the United States, including territorial seas.” Thus, “navigable waters” and “WOTUS” are one in the same. Scalia’s interpretation rejected the idea that navigable waters and WOTUS could come from channels where water flow was only occasional. Justice Scalia asserted that navigable waters/WOTUS must be, for the most part, permanent bodies of water. Given the language in Trump’s EO, it is likely that the second step of the plan will involve a proposed rule that includes a definition of WOTUS that closely resembles Scalia’s interpretation. More information on Scalia’s interpretation can be found in our earlier blog post.
It is important to keep in mind that even if the EPA and the Corps successfully repeal and replace the previous administration’s definition of WOTUS, it is still very likely that opponents will challenge any new definition. Furthermore, both the short term and long term parts of the plan have to go through the rulemaking process, including a comment and review period, before they can become effective. As a result, the debate over the meaning of WOTUS is likely far from finished.
Written by: Ellen Essman, Law Fellow, and Peggy Hall, Asst. Professor, OSU Agricultural & Resource Law Program
The controversial “Waters of the United States” (WOTUS) Rule suffered three governmental assaults this week. We reported earlier this year about litigation over the Rule and a Senate Resolution urging withdrawal of the Rule. Actions this week in the House of Representatives, the White House and the EPA echo the Senate’s sentiments and push the Rule further towards its demise.
The House Resolution
In the U.S. House of Representatives, Ohio’s Representative Bob Gibbs introduced a resolution on February 27, 2017 stating that the Rule should be vacated. House Resolution 152 declares that the Clean Water Act (from which the Rule derives) is one of the nation’s most important laws whose success requires cooperative federalism, under which federal, state and local governments have a role in protecting water resources. Based upon the foundation of cooperative federalism, “Congress left to the States their traditional authority over land and water, including farmers’ field, non-navigable, wholly intrastate water (including puddles and ponds), and the allocation of water supplies.” The Resolution asserts that the latest revision to the Rule, however, claimed broad federal jurisdiction over water that encroaches upon the authority of the States and undermines the Clean Water Act’s historical exemptions from federal regulation. The Resolution also claims that the EPA failed to follow proper processes when issuing the Rule.
The Executive Order
President Trump’s executive order (EO) issued on February 28, 2017 calls for the EPA and the Army for Civil Works (“Civil Works”, a part of the Army Corps of Engineers) to “rescind or revise” the WOTUS Rule. It is important to note, however, that the EO does not abolish the Rule; it simply orders the two agencies to review the Rule and try to adapt it to the Trump administration’s policies. The EO includes a policy statement explaining that it is in the best interest of the United States to keep “navigable waters… free from pollution,” but there is also a strong interest in promoting economic growth, so any changes to the Rule must balance both of those interests. The EO also gives the Attorney General the discretion to communicate any potential changes to the WOTUS Rule to federal courts with pending WOTUS litigation.
The EO further directs the EPA and Civil Works, when revising or rescinding the WOTUS Rule, to construe “navigable waters” as Justice Scalia did in the Supreme Court case Rapanos v. U.S. Under the Clean Water Act, “navigable waters” are defined as “waters of the United States, including territorial seas.” This means that the terms “navigable waters” and “waters of the United States” are interchangeable. In Rapanos, Justice Scalia, who wrote the decision for a plurality of the Court, asserted that navigable waters/WOTUS cannot be “ordinarily dry channels through which water occasionally or intermittently flows.” Instead, they must be “relatively permanent, standing or flowing bodies of water,” or wetlands with a “continuous surface connection” to permanent water bodies. Scalia’s interpretation is at odds with the interpretation contained in the Obama administration’s WOTUS Rule.
Agency Response to the Executive Order
EPA Administrator Scott Pruitt and Civil Works acting Secretary Douglas Lamont didn’t waste any time responding to Trump’s EO. On the same day Trump signed the Order, the agencies filed a Notice of Intention to Review and Rescind or Revise the Clean Water Rule. In the notice, the agencies explain their intentions to follow the EO, review the Rule and consider adopting Justice Scalia’s interpretation of navigable waters. The agencies state that they will utilize new rulemaking to “provide greater clarity and regulatory certainty concerning the definition of ‘waters of the United States.’”
Refresher: What’s in the WOTUS Rule?
The Obama Administration’s WOTUS Rule was released in the Federal Register on June 29th, 2015, and went into effect on August 28th, 2015. According to the EPA and the Army Corps of Engineers at the time, the rule was meant to “clarify the scope of ‘waters of the United States’...protected under the Clean Water Act.” In particular, the Rule states that a number of bodies of water qualify as WOTUS, such as: “tributaries to interstate waters, waters adjacent to interstate waters, waters adjacent to tributaries of interstate waters, and other waters that have a significant nexus to interstate waters.” The Rule elaborates on the definition of “tributaries,” which are WOTUS if they flow “to a traditional navigable water, an interstate water, or the territorial seas,” regardless of whether the flow is year-round, seasonal, or due to precipitation. Tributaries flowing into navigable and interstate waters that have “a bed and banks,” as well as “an indicator of ordinary high water mark” qualify as WOTUS under the Rule. “Adjacent waters” means “all waters located in whole or in part within 100 feet of the ordinary high water mark” of WOTUS, as well as “all waters within the 100-year floodplain” of WOTUS. Numerous different kinds of water can be “adjacent,” such as “wetlands, ponds, lakes, oxbows,” and “impoundments.” More information about the WOTUS Rule is available here.
A landowner may immediately appeal an agency’s determination that property contains “waters of the United States” that is subject to the federal Clean Water Act, according to a decision issued today by the United States Supreme Court.
The court’s holding in Army Corps of Engineers v. Hawkes Co. centered on a decision by the U.S. Army Corps of Engineers (the Corps) that property in Minnesota owned by the Hawkes Company (Hawkes) contained wetlands that were subject to the Clean Water Act. Hawkes planned to mine peat on the property, and would have to comply with Minnesota regulations. The Corps decided that Hawkes must also comply with federal Clean Water Act regulations, based on its “jurisdictional determination” that the property contained waters of the United States because its wetlands had a “significant nexus” to the Red River of the North, located 120 miles away.
Hawkes challenged the Corps’ jurisdictional determination in federal district court. The Corps requested dismissal of the case, arguing that its jurisdictional determination was not a "final agency action" that Hawkes could appeal in court. Rather, the Corps asserted that Hawkes should apply for a Clean Water Act permit and challenge the results of the permit request if dissatisfied or should proceed without a permit and challenge the jurisdictional determination in a likely enforcement action.
The federal district court agreed with the Corps and dismissed the case. Hawkes then appealed to the Eighth Circuit Court of Appeals, which reversed the district court’s decision. The Corps requested review of the appeal by the United States Supreme Court, which accepted the case.
The Supreme Court concluded that the Corps’ jurisdictional determination is appealable according to the federal Administrative Procedures Act, which allows an aggrieved party to appeal a “final” agency action. An action is final if it determines legal consequences,“marks the consummation of the agency’s decision making process,” and when there are no adequate alternatives for relief other than judicial review. All three circumstances existed in the Hawkes case, said the Court, stating that parties should not have to await enforcement proceedings that carry the risk of criminal and civil penalties before challenging a jurisdictional determination or be forced through a lengthy and costly permitting process before being able to challenge the Corps’ jurisdictional determination.
Read the decision in Army Corps of Engineers v. Hawkes Co. here.
Update: On April 21, 2016, the Sixth Circuit Court of Appeals denied a request for en banc (full court) review of this decision made by agricultural groups and several states.
In a case successfully argued by Ohio’s Solicitor Eric Murphy, the Sixth Circuit Court of Appeals based in Cincinnati has determined that it has jurisdiction to hear challenges to the Clean Water Rule (WOTUS Rule) proposed by the U.S. EPA and Army Corps of Engineers. The Rule expands the geographic extent of the “waters of the United States” (WOTUS) that are subject to the Clean Water Act.
A brief background
When the agencies published the final WOTUS Rule last summer, dozens of parties and 31 states, including Ohio, filed challenges in nine federal district courts and eight federal courts of appeal. The filings raised an immediate uncertainty about whether federal district courts or federal courts of appeal have jurisdiction to review the Rule. Despite this uncertainty, the U.S. District Court for the District of North Dakota issued a temporary injunction that prevented the Rule’s application in the 13 states that were involved in that district’s litigation. Other district courts in West Virginia and Georgia declined to issue injunctions and instead ruled that they did not have jurisdiction to review the Rule. A federal panel consolidated the cases filed before the Sixth Circuit Court of Appeals, which includes the challenge by the State of Ohio. The Sixth Circuit first issued a nationwide stay of the WOTUS Rule last October before turning to the jurisdictional challenges raised by the EPA and Army Corps.
The Sixth Circuit’s fractured opinion
The decision on jurisdiction issued by the Sixth Circuit’s three judge panel is not harmonious. Judge McKeague wrote the court’s opinion and based jurisdiction on two of seven provisions in the Clean Water Act that grant appellate court jurisdiction to review EPA actions: subsection 1369 (b)(1)(E) for actions “approving or promulgating any effluent limitation or other limitation” under certain sections of the Act and subsection 1369(b)(1)(F), for actions issuing or denying National Pollutant Discharge Elimination System (NPDES) permits. Judge McKeague relies on a U.S. Supreme Court decision that interprets the “other limitations” language in 1369 (b)(1)(E) to include limitations that “indirectly” produce limitations on point source operators and permit issuing authorities. He also cites the Sixth Circuit’s earlier decision in National Cotton Council v. U.S. EPA to conclude that agency actions “issuing or denying” an NPDES permit under 1369(b)(1)(F) include actions creating “regulations governing the issues of permits” and “rules that regulate NPDES permitting procedures,” such as the WOTUS Rule.
A concurring opinion written by Judge Griffin agrees only with the requirement to follow the Sixth Circuit’s previous decision in National Cotton Council. Judge Griffin clarifies that he is bound by but does not agree with the court’s reasoning in that case, and would not otherwise accept jurisdiction under subsections 1369(b)(1)(E) or (F). In a dissenting opinion, Judge Keith agrees with the concurring opinion that neither subsection 1369(b)(1)(E) or (F) grants an appeals court jurisdiction in regards to the WOTUS Rule. Judge Keith also argues that Judge McKeague mistakenly relies upon and overly broadens the National Cotton Council decision, which he believes does not apply to the WOTUS Rule.
Despite the disagreements between the Sixth Circuit Court judges, the decision means that the nationwide stay of the WOTUS Rule remains in effect and the court will proceed to hear the circuit’s consolidated cases that challenge the WOTUS Rule. The court’s decision on jurisdiction applies only to the states within the Sixth Circuit—Ohio, Michigan, Kentucky and Tennessee. Given the range of reasoning in the Sixth Circuit’s decision, other federal courts could reach differing decisions on the question of which court has jurisdiction over the cases. If so, we can expect a request for the United States Supreme Court to review the jurisdictional issue. As we expected, the WOTUS Rule challenges will be with us for quite some time.
Read the Sixth Circuit’s opinion for In re: U.S. Dep’t of Defense & U.S. Envtl. Protection Agency Final Rule: Clean Water Rule at http://www.ca6.uscourts.gov/opinions.pdf/16a0045p-06.pdf.