Coalition Files Lawsuit to Block WOTUS Rule

WEDNESDAY, JANUARY 25, 2023


Several groups recently joined together to file a legal complaint against the latest “waters of the United States” (WOTUS) rule, claiming that rather than providing clarity to the definition, the rule expands the federal government’s authority over dry land regardless of a connection to navigable waters.

The new rule, which was announced at the end of last year, was recently published by the U.S. Environmental Protection Agency and the U.S. Department of the Army to reduce uncertainty from changing regulatory definitions.

WOTUS Background

Part of 1972 amendments made to the Clean Water Act, federal jurisdiction was established over “navigable waters,” defined as the “waters of the United States.” The Clean Water Act prohibits the discharge of pollutants from a point source into “navigable waters” unless otherwise authorized under the Act.

“Navigable waters” are defined in the Act as “the waters of the United States, including the territorial seas.” While this is a threshold term establishing the geographic scope of federal jurisdiction under the Clean Water Act, the term “waters of the United States” is not defined by the Act but has been defined by the agencies in regulations since the 1970s.

The Clean Water Act does not define WOTUS, but provides authority for the EPA and the Department of the Army to define WOTUS by regulation. In the mid-1980s, both agencies declared a definition of WOTUS.

Additionally, the EPA reports, three Supreme Court decisions have addressed the definitions of WOTUS, including United States v. Riverside Bayview Homes, Inc. in 1985; Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers in 2001; and Rapanos v. United States in 2006.

In the most recent case, a four-Justice plurality stated that WOTUS ‘‘include only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] . . . oceans, rivers, [and] lakes,’” and ‘‘wetlands with a continuous surface connection’’ to a ‘‘relatively permanent body of water connected to traditional interstate navigable waters.’’ 

However, the four dissenting Justices concluded that WOTUS encompasses all tributaries and wetlands that satisfy either the plurality's standard or Justice Kennedy's approach that ‘‘to constitute ‘navigable waters’ under the Act, a water or wetland must possess a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.’”

Following this case, the agencies developed additional guidance for implementing the WOTUS definition.

Regulations defining these WOTUS were amended in 2015 in the Clean Water Rule: Definition of “Waters of the United States,” but was repealed by the 2019 rule that reinstated the 1980s regulations, implemented consistent with the U.S. Supreme Court cases and applicable guidance.

Then, once again in 2020, the 2019 rule was replaced with the Navigable Waters Protection Rule. However, an order from the U.S. District Court for the District of Arizona in 2021 halted the implementation of the NWPR nationwide and interpreted WOTUS as its pre-2015 regulatory regime.

In June 2021, the EPA and the Department of the Army announced their intent to revise the definition of WOTUS. Later that year, in November, they announced the signing of a proposed rule revising this definition.

Latest Rule

At the end of December, the EPA and the Army announced the final rule establishing a durable definition of WOTUS to reduce uncertainty from changing regulatory definitions, protect people’s health and support economic opportunity.

The final rule reported restores essential water protections that were in place prior to 2015 under the Clean Water Act for traditional navigable waters, the territorial seas, interstate waters, as well as upstream water resources that significantly affect those waters.

The action is anticipated to strengthen fundamental protections for waters that are sources of drinking water while supporting agriculture, local economies and downstream communities.

“When Congress passed the Clean Water Act 50 years ago, it recognized that protecting our waters is essential to ensuring healthy communities and a thriving economy,” said EPA Administrator Michael S. Regan in a statement.

“Following extensive stakeholder engagement, and building on what we’ve learned from previous rules, EPA is working to deliver a durable definition of WOTUS that safeguards our nation’s waters, strengthens economic opportunity, and protects people’s health while providing greater certainty for farmers, ranchers, and landowners.”

According to the release from the EPA, the rule reportedly establishes a durable definition of “waters of the United States” that is grounded in the authority provided by Congress in the Clean Water Act, the best available science, and extensive implementation experience stewarding the nation’s waters.

It also returns to a “reasonable and familiar” framework founded on the pre-2015 definition with updates to reflect existing Supreme Court decisions, the latest science and the agencies’ technical expertise. It establishes limits that appropriately draw the boundary of waters subject to federal protection.

Additionally, it will cover those waters that Congress fundamentally sought to protect in the Clean Water Act, including traditional navigable waters, the territorial seas, interstate waters, as well as upstream water resources that significantly affect those waters.

The full final rule, published in the Federal Register on Jan. 18, can be found here. The action is anticipated to take effect on March 20.

AGC, Coalition Lawsuit

Last week, the Associated General Contractors of America announced it was joining a range of employer groups to file a lawsuit to block the rule, noting that the new measure allegedly violates the Clean Water Act, the Administrative Procedures Act and the U.S. Constitution’s Due Process and Commerce Clauses.

“Just because a piece of land occasionally gets wet doesn’t make it a navigable waterway,” said Stephen E. Sandherr, the Association’s Chief Executive Officer. “Try as it might, the administration cannot redefine the reality of existing law or constitutional limits on executive power.”

The legal action was filed in the U.S. District Court’s Southern District of Texas on Jan. 18, seeking to have the court declare the new rule unlawful and vacate the measure. It also notes that the rule was released despite the fact the Supreme Court is currently weighing the scope of the Clean Water Act as part of the Sackett v. EPA case, which would render elements of the new rule irrelevant depending on that case ruling.

Additionally, the complaint reportedly argues that the Biden administration violated the Administrative Procedures Act, noting that the EPA’s rationale for its new rule is “arbitrary, capricious, and an abuse of discretion.”

The groups alleged that the agencies used a “flawed “cost benefit analysis and failed to solicit or consider alternative flexibility proposals as they are required to by law. The complaint also adds that the WOTUS rule violates the constitution’s Due Process and Commerce Clauses.

“After first promising new infrastructure investments, the President now seems committed to making sure much of that work gets tied up in needless regulatory holdups,” Sandherr said.

“Instead of finding new and increasing unlawful ways to obstruct infrastructure improvements, the president should instead implement the environmental streamlining provisions that were included in the bipartisan infrastructure law.”

The Coalition, in addition to AGC, consists of the American Farm Bureau Federation; American Petroleum Institute; American Road and Transportation Builders Association; Leading Builders of America; Matagorda County Farm Bureau; National Association of Home Builders; National Association of Realtors; National Cattlemen’s Beef Association; National Corn Growers Association; National Mining Association; National Pork Producers Council;  National Stone, Sand and Gravel Association; Public Lands Council; Texas Farm Bureau; and the U.S. Poultry and Egg Association.

The full complaint can be read here.

   

Tagged categories: Associated General Contractors; Associated General Contractors (AGC); Environmental Protection Agency (EPA); Government; Laws and litigation; Lawsuits; NA; North America; Program/Project Management; Regulations; U.S. Army; Water/Wastewater

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