A Sea of Uncertainty in Navigable Waters

Three recent actions have roiled the otherwise calm “navigable waters of the United States,” creating a sea of uncertainty for regulated entities and administrative agencies. Charting an appropriate course to address these actions will likely prove difficult.

The Navigable Water Protection Rule was issued, which substantially narrows the scope of jurisdiction over navigable waters. A court vacated the Corps of Engineers’ Nationwide Permit No. 12, which is widely used for pipelines and transmission lines. The Supreme Court ruled that a permit is required in certain circumstances for discharges to navigable waters that travel through groundwater.

Navigable Water Protection Rule

The Navigable Water Protection Rule was issued on January 23, 2020 and published in the Federal Register on April 21, 2020. 85 Fed. Reg. 22250 (April 21, 2020). The Rule generally adopts the definition of “waters of the United States” advanced by Justice Scalia in the Rapanos decision and is substantially narrower than its predecessor, the Clean Water Rule issued by the Obama Administration in 2015.

The Rule attempts to provide a clear delineation between jurisdictional waters and non-jurisdictional waters. It sets forth four categories of jurisdictional waters and twelve categories of non-jurisdictional waters.

There are only four categories of jurisdictional waters under the new rule: the territorial seas and traditional navigable waters; tributaries; lakes, ponds, and impoundments of jurisdictional waters; and adjacent wetlands. Definitions are important; two will be highlighted here.

Tributaries are defined as a river, stream, or similar naturally occurring surface water channel that contributes surface water flow directly or indirectly to a jurisdictional water. They must be perennial or intermittent in a typical year. This approach departs from the prior Clean Water Rule which included ephemeral waters. Adjacent wetlands are wetlands that abut a jurisdictional water. Additionally, wetlands may be adjacent if they are that physically separated only by a natural feature or are physically separated by an artificial structure so long as there is a direct hydrologic surface connection between the wetland and the water.

The Rule is very clear that if a water is not listed as one of the four categories, the water is non-jurisdictional. Nevertheless, the Rule provides a list of non-jurisdictional waters, including groundwater, ephemeral streams, prior converted cropland, and certain ditches.

Petitions for judicial review of the Rue have already been filed. For more on the Rule, see https://www.bswllp.com/the-scope-of-jurisdictional-waters-has-been-narrowed.

Nationwide Permit 12

A ruling by a federal district court in Montana has, for now at least, halted many linear projects, such as pipelines and electrical transmission lines, that rely on the simplified process afforded under the Corps of Engineers’ Nationwide Permit (NWP) No. 12.

NWP provides a streamlined permitting process for certain types of activities in jurisdictional waters. NWP 12 is one of those permits and “authorizes discharges of dredged or fill material into waters of the United States and structures or work in navigable waters for crossings of those waters associated with the construction, maintenance, or repair of utility lines, including outfall and intake structures.” A “utility line” is defined as any pipe or pipeline for the transportation of any gaseous, liquid, liquescent, or slurry substance, for any purpose, and any cable, line, or wire for the transmission for any purpose of electrical energy, telephone, and telegraph messages, and internet, radio, and television communication.”

Groups in opposition to the Keystone XL pipeline filed suit in Montana challenging the Corps’ 2017 reissuance of NWP 12. They alleged that the Corps had not adequately engaged in the consultation process required under the Endangered Species Act. The Court agreed, ruling as follows: “The Court vacates NWP 12 pending completion of the consultation process. The Court further enjoins the Corps from authorizing any dredge or fill activities under NWP 12.”

Presumably, the Corps can institute and complete that consultation process in a timely manner. Until then, though, the district court’s decision in in place. The government has sought to stay the ruling and/or limit it to just the Keystone XL pipeline and indicated it will appeal.

County of Maui Decision

The Supreme Court has weighed in on a Clean Water Act permitting issue that has divided the lower courts: does the Act require a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. The Court ruled that it did.

For decades, the County of Maui operated a wastewater facility that collects sewage from the surrounding area, partially treats it, and pumps the treated water (about 4 million gallons each day) through four wells hundreds of feet underground. The wells are about one-half mile from the Pacific Ocean and the injected water travels that distance through groundwater to the ocean.

Under the Act, the discharge of a pollutant requires a permit. The discharge of a pollutant is any addition of any pollutant to navigable waters from any point source. Applying the facts to the Act, the Court framed the question as whether there has been an addition of pollutants (the treated sewage or those pollutants remaining in the treated water) to navigable waters (the Pacific Ocean) from any point source (the wells). In order to say that there has been such an addition, and thus the need for a permit, the Court had to find that the discharge to the ocean was from a point source, even though the pollutants had to travel one-half mile through groundwater.

The Court found that the Act “requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge.” The addition of a pollutant occurs and is “’from any point source’ when a point source directly deposits pollutants into navigable waters, or when the discharge reaches the same result through roughly similar means.”

However, the Court did not define the term ‘functional equivalent.’ Instead, it provided a list of illustrative factors that “may prove relevant (depending upon the circumstances of a particular case): (1) transit time, (2) distance traveled, (3) the nature of the material through which the pollutant travels, (4) the extent to which the pollutant is diluted or chemically changed as it travels, (5) the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source, (6) the manner by or area in which the pollutant enters the navigable waters, (7) the degree to which the pollution (at that point) has maintained its specific identity.” Of these factors, “time and distance will be the most important.”

The Court left the task of applying these factors in individual cases to lower courts and administrative agencies. Even with guidance from agencies and refined principles from later decisions, the response to these factors will prove problematic. As Justice Alito said in dissent, “dischargers will be able to argue that the Court’s multifactor test does not require a permit. Opponents will be able to make the opposite argument. Regulators will be able to justify whatever result they prefer in a particular case. And judges will be left at sea.”

Conclusion

It is too soon to tell the effect of these actions on such matters as permitting, pipeline development, or citizen litigation. Hopefully, the course ultimately charted by regulated entities and agencies to address issues can find a safe harbor that provides a degree of certainty and as little disruption as possible.

John B. King is a partner with Breazeale, Sachse & Wilson LLP in Baton Rouge, Louisiana. His practice relates mainly to environmental regulatory permitting and compliance. Prior to joining the firm in 2003, he served as chief attorney for enforcement for the Louisiana Department of Environmental Quality. For more information, check www.bswenviroblog.com, or contact John B. King at jbk@bswllp.com or (225) 381-8014.

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