Appeals Court Halts Implementation of New Clean Water Rule

The United States Court of Appeals for the Sixth Circuit on Friday ordered a nationwide stay on the Army Corps of Engineers ("Corps") and Environmental Protection Agency’s ("EPA") new "Clean Water Rule" concerning the jurisdictional scope of the federal Clean Water Act (33 U.S.C. § 1251 et seq.).

As background, the Clean Water Act regulates discharges of pollutants into "waters of the United States". Exactly what are jurisdictional "waters of the United States" has proven to be a somewhat elastic concept. The Corps and EPA have, for example, interpreted "waters of the United States" to mean not only "navigable waters", but also tributaries to navigable waters, wetlands "adjacent" to or having a "substantial nexus" to navigable waters and their tributaries, interstate waters, all other waters that could affect interstate or foreign commerce, impoundments of waters of the United States, and the "territorial seas". The federal agencies have taken more or less aggressive positions on whether an on-the-ground feature is jurisdictional in different parts of the country. California in particular has seen some of the agencies’ more expansive interpretations.

Over the last three decades, the federal agencies’ varying interpretations of "waters of the United States" have led to litigation on numerous occasions, most notably in three landmark cases: United States v. Riverside Bayview Homes (1985) 474 U.S. 121; Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) (2001) 531 U.S. 159; and Rapanos v. United States (2006) 547 U.S. 715. The Supreme Court in each of these cases attempted to clarify the Clean Water Act’s jurisdictional reach over waters that are not obviously "navigable", such as wetlands. The Court declined in all three cases, however, to establish a "bright-line" rule governing the Act’s application, and as a result, jurisdictional delineations continued to be largely a matter of case-by-case consideration by the agencies.

In 2014, the Corps and EPA proposed a new regulation intended to provide a clear, consistent and predictable process for identifying waters that are subject to the Clean Water Act. The agencies’ regulatory briefings asserted that current science supported certain bright-line geographical or "distance-based" rules for determining whether "adjacent" waters are jurisdictional. In the final "Clean Water Rule", the agencies determined, among other things, that (1) waters within 100 feet of the ordinary high water mark ("OHWA") of a jurisdictional water; (2) waters within the 100-year floodplain and within 1,500 feet of the OHWA of a jurisdictional water; and (3) waters located within 1,500 feet of the high tide line of a traditional navigable water are all jurisdictional waters. The Clean Water Rule became final in June 2015.

The "Clean Water Rule" provoked strong opposition during the rulemaking process, but opposition intensified after publication of the final rule. Most problematic, the proposed rule contained none of the distance-based limits of Clean Water Act jurisdiction that appeared for the first time in the final rule. In the many lawsuits filed immediately after the Clean Water Rule became final, challengers opposed the Clean Water Rule on procedural grounds, and substantively argued that the proposed "bright-line" final rule is wholly unsupported by science or other evidence in the administrative record, and that, as a result, the rule would apply the Clean Water Act to waters that had no chemical, physical, or biological connection to any navigable water.

In In re Environmental Protection Agency and Department of Defense Final Rule: "Clean Water Rule: Definition of Waters of the United States," 80 Fed. Reg. 37,054 (June 29, 2015), just one of the cases pending on this issue, the Sixth District Court of Appeals agreed in a 2-1 decision that a group of eighteen petitioner states had shown a substantial likelihood of success on the merits in their challenge to the Clean Water Rule’s validity. The Sixth District agreed that it is "far from clear" that the agencies’ rule is consistent with the Supreme Court’s Rapanos decision in particular. The Court also concluded that the agencies’ failure to disclose the numeric, distance-based limits of jurisdiction during the rulemaking process rendered the process "facially suspect". In the interest of "cooperative federalism" and putting to rest ongoing uncertainty regarding the new rule’s validity, the Court stayed implementation of the Clean Water Rule nationwide. The Sixth Circuit’s order is available here.

The stay – although temporary – "restores uniformity of regulation under the familiar, if imperfect, pre-Rule regime, pending judicial review." In other words, the Corps and EPA cannot apply the Clean Water Rule when making jurisdictional determinations while the stay is in place.

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