On June 22, 2020, the U.S. Environmental Protection Agency’s (EPA) and U.S. Army Corps of Engineers' (Corps) new Navigable Waters Protection Rule, published April 21, 2020, (85 Fed. Reg. 22,250) went into effect in every state except for Colorado. The new Navigable Waters Protection Rule represents the second and final phase of the Trump administration’s rollback of the 2015 Obama-era rule, and it significantly limits the scope of waters subject to federal regulation under the Clean Water Act.
The 2015 rule had sparked significant controversy, generating over a million comments during the rulemaking process. There were numerous legal challenges to the 2015 rule, and that litigation created a regulatory patchwork throughout the country as the rule was stayed in some jurisdictions, but not others. Last October, the U.S. EPA and the Corps completed the first phase of their rollback when they repealed the 2015 rule, restoring the regulations that had previously been in effect. This second phase of the rollback with the Navigable Waters Protection Rule creates a new set of regulations based on a much more limited interpretation of federal jurisdiction.
The new rule is likely to have far-reaching impacts on industries and environments throughout the United States. However, like the 2015 rule, the new Navigable Waters Protection Rule has also proven to be controversial and is already the subject of numerous legal challenges to its enforceability.
Legal Challenges to the New Navigable Waters Protection Rule and its Current Status
Two courts have already ruled on the validity of the Navigable Waters Protection Rule and its new definition of “waters of the United States” under the Clean Water Act. Three days before the rule went into effect, a federal judge in the District of Colorado blocked the implementation of the Navigable Waters Protection Rule in Colorado, holding that a prior Supreme Court decision—Rapanos v. United States—foreclosed the interpretation the U.S. EPA and Corps are now advancing.1 Because of this local injunction, the Navigable Waters Protection Rule does not apply in Colorado. On the same day, however, a judge in the Northern District of California reached the opposite conclusion, instead denying a motion by a group of states and cities to block the rule’s nationwide implementation.2 In contrast to the Colorado court, the California court noted that the U.S. EPA and Corps have the authority to reasonably interpret what constitutes “waters of the United States,” even if their interpretation significantly limits federal jurisdiction over certain bodies of water.
Similar requests for relief have been made in other federal district courts. And since the Navigable Waters Protection Rule went into effect on June 22, additional legal challenges have been filed in several more federal courts—including Arizona,3 Washington,3 and New Mexico.5 More appeals are expected in the coming weeks.
While many challengers argue for a return to the broader, Obama-era definition of “waters of the United States,” several others argue that the new Navigable Waters Protection Rule still reaches too far. These challengers, like those in Oregon,6 claim that some of the new Navigable Waters Protection Rule’s key inclusions — like certain wetlands and tributaries — should fall outside federal jurisdiction.
The New Navigable Water Protection Rule’s Key Changes and Practical Effects
While many waters excluded from federal jurisdiction under the 2015 rule remain excluded under the new Navigable Waters Protection Rule — like prior converted cropland and artificially irrigated areas — the new rule adds several more exclusions. Namely, it limits “waters of the United States” to include only four categories: 1) the territorial seas and traditional navigable waters; 2) tributaries of those waters; 3) certain lakes, ponds, and impoundments of jurisdictional waters; and 4) wetlands adjacent to jurisdictional waters. Other major changes include:
- Ephemeral streams — streams that depend solely on rain and snowfall for their flow — are no longer jurisdictional tributaries, which are now limited to perennial (year-round) and intermittent (seasonal) streams.
- Fewer ditches fall under federal jurisdiction than before.
- Only lakes, ponds, and impoundments that 1) are traditionally navigable, 2) contribute surface flow to the territorial seas or traditional navigable waters in a typical year directly or through jurisdictional waters, or 3) are inundated by flooding from other jurisdictional waters in a typical year are subject to federal jurisdiction.
- Significant limits on federal jurisdiction over interstate waters, which the U.S. EPA and Corps now define as only those waters that are either traditionally navigable or meet the definition of a tributary, lake/pond/impoundment, or an adjacent wetland. This new definition no longer considers all waters that travel between states to be interstate waters, significantly narrowing the prior definition.
- Over half of the wetlands in the United States now fall outside of federal jurisdiction, particularly those that have no surface water connections to jurisdictional waters and those adjacent to other wetlands.
These changes have a broad impact for numerous industries, whether in the agricultural, commercial, or residential space. The fact that the new Navigable Waters Protection Rule is narrower in scope than the 2015 rule means that property developers may have to seek out fewer permits for their projects, and in turn, face fewer financial hurdles in developing property that abuts a body of water.
Taft summer associates Addison Caruso, Robert Hudson, Megan Luby, and Zhaocheng Li contributed to this article.
1Colorado v. U.S. EPA, No. 20-cv-1461-WJM-NRN, 2020 U.S. Dist. LEXIS 108174 (D. Colo. June 19, 2020).
2California v. Wheeler, No. 20-cv-03005-RS, 2020 WL 3403072 (N.D. Cal. June 19, 2020).
3Complaint, Pascua Yaqui Tribe v. U.S. Environmental Protection Agency, No. 4:20-cv-00266 (D. Ariz. filed June 22, 2020).
4Complaint, Puget Soundkeeper Alliance v. U.S. Environmental Protection Agency, No. 2:20-cv-00950 (W.D. Wash. filed June 22, 2020).
5Complaint, Navajo Nation v. Andrew Wheeler, No. 2:20-cv-00602 (D.N.M. filed June 22, 2020).
6Motion for Preliminary Injunction, Oregon Cattlemen’s Association v. U.S. Environmental Protection Agency, No. 3:19-cv-00564 (D. Or. filed June 8, 2020).