By Lauren J. Rucinski

On Tuesday, December 11, 2018, the Environmental Protection Agency (“EPA”) and U.S. Army Corp. of Engineers (“ACE”) proposed a rule revising the definition of “waters of the United States.” The so-called WOTUS rule defines the scope of Clean Water Act (“CWA”) jurisdiction and the permitting requirements thereunder, and has been in the hot seat for the past two years under both the Trump Administration and a bevy of litigation.

The Obama Administration promulgated the WOTUS rule in 2015, which defined the term “waters of the United States” broadly to cover any lake, stream, wetland, etc. with a “significant nexus” to a navigable water.[1] The regulation was challenged in a number of federal district courts and courts of appeal.[2] Following his election, President Trump issued a February 2017 Presidential Executive Order entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule,” requesting that the EPA and ACE repeal and replace the 2015 rule. In response, the agencies repealed the 2015 WOTUS Rule, which is the first step in the process.[3] This rule proposal is the “second step” in the process.

The proposed definition of WOTUS set forth in the proposed rule would replace the 2015 WOTUS rule.[4] Under the proposed rule, the following six “clear” categories of waters would be considered “waters of the United States”:

  1. Traditional navigable waters;
  2. Tributaries;
  3. Certain ditches;
  4. Certain lakes and ponds;
  5. Impoundments; and
  6. Adjacent wetlands.[5]

Each category is supplemented by examples and definitions. Of particular note to Louisiana industry is the sixth category: adjacent wetlands. According to the proposed rule, wetlands would need to “physically touch” or be connected by inundation or perennial flow (including over a levee or berm if applicable) to navigable waters in order to bring the area under CWA rules.

Although the question still remains whether these definitions provide any more clarity than the previous “significant nexus test” under the 2015 WOTUS rule, both the EPA and ACE are optimistic. EPA Acting Administrator Andrew Wheeler stated: “For the first time, we are clearly defining the difference between federally protected waterways and state protected waterways. Our simpler and clearer definition would help landowners understand whether a project on their property will require a federal permit or not, without spending thousands of dollars on engineering and legal professionals.”[6]

It is important to note that the State of Louisiana through the Louisiana Department of Environmental Quality (“LDEQ”) defines its own rule for “waters of the state.” The LDEQ rule is much broader and includes “both the surface and underground waters within the state of Louisiana including all rivers, streams, lakes, groundwaters, and all other water courses and waters within the confines of the state, and all bordering waters and the Gulf of Mexico.”[7]

The proposed rule can be found here and the public comment period will be open for the sixty days following the proposed rule’s publication in the Federal Register.

*******************************************

[1] 80 Fed. Reg. 32054, June 29, 2015.

[2] See “A Plethora of Cases Could Affect WOTUS Rulemaking” (June 1, 2017) available at https://www.louisianalawblog.com/environmental-litigation-and-regulation/plethora-cases-affect-wotus-rulemaking/#_ftn1 (citing and discussing e.g., United States v. Robertson, No. CR 15-07-H-DWM, 2015 WL 7720480 (D. Mont. Nov. 30, 2015); Duarte Nursery Inc. v. Army Corps of Engineers, et al., 17 F. Supp. 3d 1013 (E.D.Cal. 2014); Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 199 L. Ed. 2d 501 (2018))  

[3] 83 Fed. Reg. 32227, July 12, 2018.

[4] https://www.epa.gov/wotus-rule/step-two-revise.

[5]https://www.epa.gov/sites/production/files/2018-12/documents/factsheet_-_wotus_revision_overview_12.10_1.pdf;

[6] https://www.epa.gov/newsreleases/epa-and-army-propose-new-waters-united-states-definition.

[7] LAC 33:IX.107.

This is a horizontal, color, royalty free stock photograph shot with a Nikon D800 DSLR camera. The sky at dusk reflects pastel colors on the tranquil water's surface. Lilly pads float on this wetland landscape. Trees fill the background.

By Lauren J. Rucinski

The US Ninth Circuit Court of Appeals has an opportunity to rule on controversial Clean Water Act wetlands jurisdictional requirements through the appeal of a Montana man’s conviction for polluting a navigable waterway. US v. Joseph Robertson, No. 16-30178 (C.A. 9). The timing of the appeal could affect the Trump administration’s efforts to take a second look at the Obama-era “Waters of the United States” (“WOTUS”) rule.

Joseph Robertson was convicted by a jury in the U.S. District Court for the District of Montana in April of 2016 for unauthorized discharge of pollutants into waters of the US and malicious mischief for injury or depredation of US property. The charges arose from Robertson’s excavation and construction of 9 stock ponds after being told by the government that he could not do so. The activities caused the discharge of dredged and fill materials into a tributary of the neighboring navigable river and also caused damage to nearby wetlands. Robertson was sentenced to 18 months prison and ordered to pay $129,933 in restitution for ponds dug on Beaverhead-Deerlodge National Forest land and on private property near his mining claim. Robertson now argues that the District Court did not have jurisdiction to hear his case because the government failed to articulate a lawful standard for what qualifies as “waters of the United States.” United States v. Robertson, No. CR 15-07-H-DWM, 2015 WL 7720480 (D. Mont. Nov. 30, 2015).

The Clean Water Act prohibits the discharge of any pollutant without a permit into “navigable waters,” which it defines, in turn, as “the waters of the United States.” 33 U.S.C. §§ 1311(a), 1362(7), (12). The term “waters of the US” has always included certain wetlands within federal jurisdiction, but the scope of that jurisdiction has been controversial.  The U.S.  Army Corps of Engineers administers the program which issues permits for dredge and fill activities affecting waters of the US. However, for a certain waterbody to be subject to permitting requirements, it must be a “water of the United States.”

Over the years, the primary issue concerning which wetlands are subject to regulation was the degree of their connectedness with a “real” navigable water. The current seminal cased interpreting “waters of the United States” is a split 4-1-4 opinion from the US Supreme Court in Rapanos v. US, 547 U.S. 715 (2006). Justice Scalia wrote the plurality opinion which held that the term “waters of the United States” requires wetlands to maintain a “continuous surface connection” to navigable waters. Justice Kennedy wrote a separate concurring opinion with a relatively wider view of jurisdiction under the Clean Water Act, requiring only that the wetland maintain a “significant nexus” to navigable waters. Confusion has ensued, with courts applying the Clean Water Act to any water that satisfied either the Kennedy or Scalia tests. However, the Seventh Circuit, and relevant to the Robertson case, the Ninth Circuit have held that the Kennedy test alone is controlling. N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993, 999-1000 (9th Cir. 2007).

The Corps and EPA sought to resolve the ambiguity created by the Rapanos decision by issuing guidance in 2007, then revising it in 2008.  However, the regulated community found the guidance equally ambiguous and many requested promulgation of rules rather than guidance. The Obama administration promulgated a regulation, referred to as the WOTUS rule, in 2015.[1] The rule used Kennedy’s test only, but that regulation was challenged in a number of federal district courts and courts of appeal.  The litigation has been consolidated nationwide in the US Court of Appeals for the Sixth Circuit, where the rule has been stayed pending review.[2]

In the meantime, the Corps permitting and enforcement programs continue under the prior rules, with only Rapanos as guidance. The jury in the Robertson case was instructed to use the Kennedy “significant nexus” test in determining that the tributary Robertson polluted was in fact regulated by the CWA. Two months after Robertson’s conviction, the Ninth Circuit decided United States v. Davis, 825 F.3d 014 (9th Cir. 2016). In Davis, the Ninth Circuit held that a split Supreme Court decision should only bind the federal courts of appeal when a majority of the Justices agree upon a single underlying rationale and one opinion can reasonably be described as a logical subset of the other. Id.at 1021-22. Robertson argues on appeal that the ruling in Davis effectively overturns prior Ninth Circuit precedent applying the Kennedy test as the sole test, teeing up the question of which Rapanos test should be applied, if any, for the Ninth Circuit.

The Ninth Circuit will hear the Robertston case amid a slew of other legal battles over the jurisdiction of the Clean Water Act. For example, a case pending in the Eastern District of California for over a year pivots around the same arguments on the breadth of the Clean Water Act’s jurisdiction. See Duarte Nursery Inc. v. Army Corps of Engineers, et al., 17 F. Supp. 3d 1013 (E.D.Cal. 2014). The plaintiffs in that case have filed a motion to stay the case until the Robertston decision.

Further, a Supreme Court case, National Association of Manufacturers v. Department of Defense, challenges whether law suits over the WOTUS rule should be heard in the federal district courts or federal appellate courts (currently pending in 6th Circuit). If the Supreme Court decides that the district courts should hear these types of cases, it could revive a waterfall of stayed or dismissed district court cases over the WOTUS rule. The Supreme Court decided to take up the case in January, but the Trump administration subsequently asked the Court to stay the case following a February 28, 2017 executive order[3] compelling U.S. EPA and the Army Corps of Engineers to take another look at the WOTUS rule. On the same day, EPA and the Corps announced that their intent is to repeal the WOTUS rule and to propose a new rule.[4] A proposed revision to the rule has been sent to the Office of Management and Budget, but has not yet been released to the Federal Register for proposal.[5] It is widely anticipated that the proposed rule will adopt the Scalia test.

The scope of the Clean Water Act jurisdiction is particularly significant to landowners and industry groups in Louisiana. Obtaining a permit is costly but the penalties for discharging into waters of the United States without one can be rather substantial (criminal conviction and/or civil penalties), and can include an injunction stopping the project. The Trump administration has indicated that it supports the Scalia interpretation which would, to a certain degree, limit the scope the U.S. EPA and Army Corp of Engineers jurisdiction over certain “isolated” waters and wetlands. However, if the Ninth Circuit endorses the Kennedy rule in the Robertson case, it may create more legal hurdles for the Trump administration in overturning the WOTUS rule through rulemaking action.

************************************************

[1] 80 Fed. Reg. 32054, June 29, 2015.

[2] In re: United States Department of Defense and United States Environmental Protection Agency Final Rule: Clean Water Rule: Definition of “Waters of the United States”, 803 F.3d 804 (6th Cir. 2015).

[3] See: https://www.whitehouse.gov/the-press-office/2017/02/28/presidential-executive-order-restoring-rule-law-federalism-and-economic.

[4] 82 Fed. Reg. 12532, March 6, 2017.

[5] For updates on the current WOTUS rulemaking, see: https://www.epa.gov/wotus-rule.