Recent opinion highlights importance of definition of 'water'

Boat are seen on the water during a heat wave in Lake Havasu, Arizona, U.S. June 15, 2021.   REUTERS/Bridget Bennett
Boat are seen on the water during a heat wave in Lake Havasu, Arizona, U.S. June 15, 2021. REUTERS/Bridget Bennett

September 23, 2021 - In a recent opinion in Pasqua Yaqui Tribe v. EPA, the U.S. District Court for the District of Arizona vacated the 2020 Navigable Waters Protection Rule (NWPR) that redefined the term "Waters of the United States" under the Clean Water Act (CWA). The NWPR, which was developed and released by the Environmental Protection Agency (EPA) under the Trump Administration, substantially narrowed the scope of waterbodies subject to federal regulation and replaced a 2015 rule promulgated under the Obama Administration.

Controversy over the definition has been protracted, and the recent Pasqua ruling confirms that uncertainty around which waters are regulated will continue for the years, frustrating environmental advocates, farmers, industry leaders, and developers.

The CWA was enacted in 1972 and regulates the discharge of contaminants to "Waters of the United States." Unfortunately, the law provided no definition for that term, but instead leaves the definition open to agency rulemaking and interpretation.

Although a decades-long debate over a definition may seem overly legalistic, determining which waters are regulated is critical to environmentally sensitive areas. If a feature is defined as a "Water of the United States," it is subject to greater regulation by EPA and the U.S. Army Corps of Engineers (Corps), including requiring permits for dredging and filling under the CWA and requiring operations that discharge to the water to secure a National Pollution Discharge Elimination System (NPDES) permit. These regulations introduce additional steps to development projects, potentially limit activities on adjacent properties, and can impose greater scrutiny on releases from industrial operations.

Before the 2015 Obama-era rule, what constituted a "Water" was determined by agency guidance documents, particularly the 1986 definition of "Waters" published by the Corps and EPA. Two U.S. Supreme Court decisions from 2001 and 2006 also attempted to add structure to the definition. In the 2001 case Solid Waste Agency of Northern Cook County (SWANCC) v. United States et al, the majority found that the Corps' authority did not extend to isolated waters, only those that "were or have been navigable in fact or which reasonably could be so made."

In 2006, the Court again considered the definition in Rapanos et ux., et al. v. United States, and could not reach a majority opinion. Writing for a plurality, Justice Anthony Kennedy stated that a "Water of the United States" must have a "significant nexus" to navigable rivers and seas. Justice Antonin Scalia, in his own plurality opinion, again emphasized the importance of "navigability" and argued that if a water was not navigable, it must be "relatively permanent." In the following years, federal courts and guidance tended to favor the "significant nexus" test when considering the scope of the CWA.

The 2015 Clean Water Rule sought to reduce the use of case-specific analysis of waters and expanded protections for tributaries and ephemeral waters. However, in October 2015, the 6th U.S. Circuit Court of Appeals issued a nationwide stay of the rule, which halted its implementation. Under the Trump Administration, EPA and the Corps developed the NWPR, which codified Justice Scalia's approach, and scaled back protections for ephemeral features, which are those waters that are seasonally dry and only have water due to precipitation.

The NWPR resulted in CWA protection for significantly fewer waters, particularly in the southwest, where ephemeral features are common. The Corps reported that under the NWPR, there was a 25 percent reduction in the number of waters that would have otherwise been considered protected. Data from 2017 showed that under the NWPR, 51 percent fewer wetlands and 18 percent fewer streams would receive federal protection.

Even before the Pasqua decision, EPA and the Corps, under the Biden Administration, had announced a new process to revise the definition, and sought to remand the issue until the new rulemaking process could be completed. However, the Pasqua plaintiffs were unwilling to wait and moved to have the NWPR vacated. A group of industry intervenors argued that vacating the rule would "increase regulatory uncertainty."

The District Court agreed with plaintiffs and found that federal agencies had violated the Administrative Procedure Act by acting arbitrarily and capriciously in developing the NWPR. The court also found that failing to vacate risked causing serious environmental harm and that the rule was too fundamentally flawed to be revised.

The immediate impact of Pasqua is more uncertainty — although the court's decision appears to implement a nationwide vacation of the NWPR, the court's authority to vacate the rule beyond its jurisdiction is an open question. Previous administrations, including Trump's and Obama's, have argued that a federal district court can only vacate an agency rule within its jurisdiction. It is not yet clear whether the Biden administration will challenge the breadth of the ruling on the same grounds.

It is also unclear which definition of "Waters of the United States" will prevail until EPA and the Corps issue an updated rule. Although the 2015 Clean Water Rule was repealed under Trump, the Pasqua court has requested briefing on whether it should vacate that repeal, which would require EPA and the Corps to revert back to the 2015 rule rather than the original 1986 definition. The Pasqua decision may also increase challenges to permits issued to projects under the NWPR, which will lead to delay and additional costs.

As the courts, EPA, and the Corps sort out the impact of Pasqua, there are several considerations for projects and parties anticipating seeking permits and jurisdictional determinations:

•Agriculture and farming stakeholders should be aware that as the scope of the definition of "Waters of the United States" fluctuate, there may be increased permitting requirements for their industry, particularly with respect to pesticide and insecticide use.

•Construction and development project stakeholders should track the jurisdictional determination process closely, anticipate permitting delays, and build buffers into development schedules.

•Parties should evaluate permitting strategy and consult with counsel early. Navigating the murky waters of CWA permitting while the definition is in flux will be complex and slow.

Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias. Westlaw Today is owned by Thomson Reuters and operates independently of Reuters News.

Alexandra Kleeman is a partner at Stoel Rives LLP. Her practice focuses on transactional and litigation support on real estate and environmental matters, including disposition and acquisition of contaminated sites, redevelopment and cleanup of contaminated properties, and resolution of cleanup liability disputes. She has extensive experience with the investigation and remediation of complex contaminated sites arising under CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act) and the Model Toxics Control Act, Washington state's environmental cleanup law, and advises potentially liable parties and stakeholders on investigation strategies, agency coordination, allocation of past and future cost liabilities, and navigating historic insurance coverage issues. She may be reached at: