Back to the Future!!

The scope of regulatory jurisdiction over navigable waters and wetlands has again come into question under the Biden Administration. Over the course of four administrations, this jurisdiction has been explained, expanded, enjoined, restricted, and remanded to the point where the public has little confidence in continuity over time. Now, to determine jurisdiction over waters and wetlands, we go back to prior guidance while the future of regulatory jurisdiction is determined through yet another rulemaking.

The Clean Water Act regulates discharges of pollutants from point sources to navigable waters, defined in the Act as “waters of the United States” or WOTUS. The regulatory definition of WOTUS has expanded over the years, increasing regulatory jurisdiction over an ever-expanding amount of waters and wetlands. In 2006, the Supreme Court muddied the waters in the Rapanos case, in which Justice Scalia and Justice Kennedy both wrote opinions regarding the scope of authority to regulate WOTUS.

Justice Scalia took a narrow view, concluding that WOTUS includes relatively permanent, standing, or continuously flowing bodies of water and wetlands with a continuous surface connection to those waters. Justice Kennedy found that wetlands are jurisdictional if there is a significant nexus between the wetlands and traditionally navigable waters such that the wetlands significantly affect the chemical, physical, and biological integrity of those waters.

In 2015, the Obama Administration adopted the Clean Water Rule, which significantly expanded the jurisdictional reach of the agencies by, among other things, expanding the definition of tributaries. In 2017, President Trump issued an executive order directing the agencies to review and replace the Clean Water Rule with a regulation adopting the reasoning of Justice Scalia’s opinion in Rapanos. In 2020, the agencies issued the Navigable Water Protection Rule, or NWPR, which defined WOTUS in accordance with Justice Scalia’s narrower view.

On January 20, 2021, President Biden issued Executive Order 13990 in which he ordered all federal agencies to review “all existing regulations, orders, guidance documents, policies, and any other similar agency actions” taken during the Trump Administration to determine if those actions conflicted with the “national objectives” set forth in the EO 13990. EPA and the Corps have determined that the NWPR must be replaced.

EPA then filed a motion in federal court to remand the NWPR. The district court granted the motion, remanding the rule back to EPA and vacating it as well. In response, the EPA and the Corps halted implementation of the NWPR and are interpreting WOTUS consistent with the pre-2015 regulatory regime.

As a result, the EPA and the Corps interpret WOTUS in accordance with a guidance document issued in the wake of the Rapanos decision. The guidance builds on Justice Scalia’s narrower view, but also asserts jurisdiction over all waters with a significant nexus to traditional navigable waters, including non-navigable tributaries that are not relatively permanent and wetlands adjacent to those waters. To determine if a significant nexus exists, the agencies will assess the flow characteristics and functions of the tributary itself and the functions performed by all wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical and biological integrity of downstream traditional navigable waters.

To their credit, the agencies claim to want a durable and long-lasting definition that finds a common ground between an overly expansive or restrictive definition. Hopefully, they can do so and future administrations will avoid revising the rule every four or eight years.

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