Last month the Trump Administration announced a proposed rule that would dramatically reduce the scope of federal authority under the Clean Water Act (“Act”). [1] If finalized in its current form, the rule would eliminate federal jurisdiction over a significant number of streams, wetlands, and other waters. The proposed rule will impact a wide range of individuals and businesses—as well as agencies and municipalities—that engage (or have a financial stake) in land and project development activities on these areas, while reducing the time and costs associated with obtaining Army Corps of Engineers ‘dredge and fill permits.’ While the proposal would not restrict the ability of states to regulate activities in these areas, the extent to which states will step in and do so is unclear. The 60 day period for commenting on the rule will start as soon as it is published in the Federal Register.
Background
The Clean Water Act grants to the U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps”) the authority to require federal approval before any entity discharges pollutants, including dredged or fill material, into the “navigable waters.” [2] That means that any project impacting the use of these areas requires federal approval which can be a long, arduous, and expensive process, if it is granted at all.
The Act defines the term “navigable waters” as “the Waters of the United States, including the territorial seas.” [3] The ambiguity of what Congress meant by defining the scope of “navigable waters” to include all so-called “waters of the United States” (“WOTUS”) has led to a long history of shifting interpretations and legal challenges.
Round 1: In the 1970’s and 1980’s, EPA and the Corps (consistent with a 1985 Supreme Court decision) [4] issued regulations and guidance—including the Corps’ infamous1987 “Wetlands Delineation Manual”—establishing relatively broad and convoluted applications of WOTUS. Under these early rules and guidance, the agencies would assert jurisdiction over a wide swath of waters far removed from those which are navigable-in-fact, often requiring landowners to retain geological, hydrologic, and other experts to help them determine if their property contained ‘jurisdictional’ wetlands—wetlands that were subject to permitting requirements.
However, Supreme Court decisions in 2001 (in Solid Waste Agency of Northern Cook Cnty. v. U.S. Army Corps of Engineers (“SWANCC”)) [5] and in 2006 (in Rapanos v. United States (“Rapanos”)), [6] swung the pendulum in the opposite direction, with the Court placing renewed emphasis on the statutory and constitutional limits to federal authority over what constitutes “navigable waters.” In its most recent case, Rapanos, the court failed to reach agreement on the scope of Clean Water Act jurisdiction. As a result, in Rapanos, a plurality of four Justices signed onto an opinion, authored by the late Justice Antonin Scalia, which limits federal authority to “relatively permanent, standing or continuously flowing bodies of water” connected to traditional navigable waters, and to “wetlands with a continuous surface connection to” such relatively permanent waters. [7] In contrast, Justice Anthony Kennedy, who cast the deciding fifth vote in the case—but wrote a separate concurring opinion—concluded that Clean Water Act jurisdiction can extend to all waters that possess a “significant nexus” to navigable waters (regardless of the existence of a surface connection). [8]
Round 2: EPA and the Corps (in the final year of the Bush Administration) issued guidance that was intended to address the confusion caused by the differing opinions in Rapanos. It said that the agencies would assert jurisdiction over waters that met either Justice Scalia’s or Justice Kennedy’s jurisdictional tests, and explained how the agencies would apply those tests in the field. [9] Of course, the difficulty of determining what constitutes a “significant nexus” or a “continuous surface connection” in the real world led to continued confusion over whether federal permits would be needed for projects.
Round 3: In 2015, the Obama Administration issued the landmark Clean Water Rule to replace the guidance issued during the Bush Administration. As explained in more detail in our prior Alert, the Clean Water Rule expansively interpreted both (a) the array of waters that the agencies would deem categorically jurisdictional, and (b) the nature and scope of the case-by-case “significant nexus” analysis that the agencies would apply to other water bodies. For instance, under the Clean Water Rule, all tributaries of navigable waters (without regard to frequency of flow), and all waters adjacent to such tributaries, are deemed by rule to have a significant nexus to downstream waters, and thus are categorically jurisdictional (with broad...
