Biden-Harris Administration Plans to Revise ‘Waters of the United States’ Definition | Morgan Lewis

In a move expected to expand the scope of the Clean Water Act, the US Environmental Protection Agency and Army Corps of Engineers announced their intention to revise the definition of “United States waters” – an important threshold for the clean water application of the law.

The US Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) issued a June 9 press release announcing their intention to redefine “the waters of the United States” under the Clean Water Act and themselves to turn away from a Trump-era rule that narrowly defined “waters of the United States”. The agencies signaled their intention to take two steps – first to overturn Trump-era rule and then to enact additional rulebook to promulgate a new, broader definition of “United States waters”.

Various stakeholders have already reacted strongly to the announcement, including industry representatives fearing a possible expansion of the law and environmental groups who believe authorities are not acting fast enough. Any rule the agencies put in place will therefore almost certainly lead to litigation and further scrutiny by federal courts.

BACKGROUND

The Clean Water Act applies to “navigable waters” which, in turn, are defined by the law as “United States waters”. Because of the importance of this issue of the applicability of the threshold, the EPA and the Corps have long struggled over how to delineate which waters are waters of the United States. And in recent years the topic has become a political football that shifts back and forth with changes in administration.

The difficulty in defining the waters of the United States is illustrated by the US Supreme Court ruling in the 2006 Rapanos v. United States case. This 4-1-4 split decision created a standard that the lower courts found difficult to apply, and the EPA and Corps have endeavored to further define it. In Rapanos, five Supreme Court justices agreed to overturn the authorities’ finding that certain wetlands are covered by the Clean Water Act, but they disagreed on why. Judge Scalia’s plurality took the view that there must be a “continuous surface connection” to traditionally navigable water, while Judge Kennedy’s approval only required a “significant link” that allowed for a broader consideration of hydrological and ecological factors. Lower courts have typically seen Justice Kennedy’s test as controlling because it was the closest reason for the authorities’ interpretation of the law to be overturned.

In 2015, the Obama administration promulgated a rule that characterized it as further defining the “significant nexus” standard and establishing certain “light line” categories of water bodies that are always covered by the Clean Water Act. This rule defined a “significant relationship” in the broadest sense, which, when combined with other adjustments to the authorities’ existing definition of US waters, broadened the scope of the law.

The Trump administration then changed course dramatically. In 2017, President Donald Trump issued an executive order directing the EPA and the Corps to repeal the 2015 rule and then issue a revised order. The EPA and Corps followed this two-step process and eventually issued a definitive ordinance in September 2019 that eliminated government agencies’ use of the “significant nexus” test in favor of Justice Scalia’s “continuous surface connectivity” standard and made other changes that the scope of the law. Taken together, these changes made the jurisdiction of the Clean Water Act tighter than not only the Obama-era rule, but also the pre-2015 standards originally introduced by the Bush administration.

ANNOUNCEMENT

President Joseph Biden issued an executive order in early 2020 directing the EPA and the Corps to review the rule of the Trump era. On June 9, 2021, the agencies announced the results of this review and outlined their plans to publish a revised definition. The agencies’ review found that “nearly every one of the 1,500+ streams rated has been found non-judicial under the Trump-era rule” and identified “333 projects that would have required Section 404 approval [Trump-era rule]but no more. ”The authorities also found that the limited jurisdiction of the Clean Water Act is contributing to significant environmental degradation.

In light of these findings, the agencies outlined their plan to repeal and replace the Trump-era rule with a process similar to that of the previous administration. First, the agencies will repeal the Trump-era rule and revert to the agencies’ pre-2015 regulations and guidelines. Then they will go through a separate process to enact a new rule that further defines the waters of the United States.

The agencies’ announcement highlighted four considerations that will influence this rulemaking process:

• “Protecting water resources and our communities in accordance with the Clean Water Act”
• “Latest science and the effects of climate change on our waters”
• “Highlighting a rule with a practical implementation approach for state and tribal partners”
• “To reflect the experience and input of landowners, the agricultural community that drives and feeds the world, states, tribes, local governments, community organizations, environmental groups, and disadvantaged communities that have concerns about environmental justice.”

The agencies also stressed that they will take into account the “implementation experience” of each of the Bush, Obama and Trump era regulations.

On the same day, the U.S. Department of Justice (DOJ) filed a lawsuit in the U.S. District Court for the Massachusetts District, requesting that the Trump-era rule be referred back to the authorities. If the application is successful, the dispute will end and the rule will be returned to the authorities. But the DOJ in particular made no attempt to vacate the Trump-era rule, so it will stay in place until the agencies lift it.

IMPACT

If the EPA and Corps issue a revised definition of United States’ waters, it is expected that the scope of the Clean Water Act will be expanded at least beyond the Trump-era rule and perhaps the Bush-era rule. Wider application of the Clean Water Act is in line with the Biden-Harris administration’s overarching emphasis on improving the environment, and the priorities listed in the agencies’ announcement also suggest that the agencies are likely to take an expansive perspective. However, the agencies could learn some lessons from criticism of the Obama era in order to avoid particularly controversial provisions of this rule.

Given the agencies’ plans to repeal the Trump-era rule and later move on to a new rule, it is likely that the new rule will not be in place for a number of months, and possibly until 2022. In the period between the repeal of the Trump-era rule and the new rule, the Agencies, EPA, and the Corps will determine which bodies of water will be covered by the Clean Water Act prior to 2015, according to the agencies’ rules and guidelines.

If the agencies publish a notice of proposed regulations for a revised definition of United States waters, they will no doubt receive a large number of comments from interested stakeholders on both sides of the issue. And if a final rule is promulgated, it will almost certainly be legally challenged. These legal challenges could lead to appeal decisions that provide further clarity on the scope of the Clean Water Act, including a possible return visit to the Supreme Court.

Summer Associate Alyssa Huang contributed to this LawFlash.

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