Deluge of Lawsuits: The Battle Over the Scope of the Federal Clean Water Act

Federal, state, and local governments all seem to be in agreement on a basic principle: it is important to protect the integrity and quality of our nation’s oceans, rivers, lakes and streams. Many states (such as Georgia) have longstanding laws and agencies dedicated to this task. Recently, however, a major battle has erupted between the federal government and at least 28 states over a simple-sounding but fundamental question: where does the jurisdiction of state and local government end and the federal government begin? The answer to this question is not an academic issue; it has such significance that groups such as the Chamber of Commerce of the United States of America, the National Federation of Independent Business, the National Association of Home Builders, the National Association of Manufacturers, the American Farm Bureau, and others have filed additional lawsuits over the issue within the last month.

What is the dispute, and how does it impact your home and business?

In 1972, Congress passed a law which would grow into the current Clean Water Act (or “CWA”). Regulations are issued under the Clean Water Act by the United States Environmental Protection Agency (the “EPA”). By enacting the CWA, Congress recognized that states historically played a pivotal role in achieving water quality goals and in regulating land and water use as well.[1] Many states had already enacted laws and programs to protect local waterways.[2] Rather than invalidating all of these historic state efforts, Congress believed that the best way to enhance the integrity of our waterways was to overlay federal law on the existing state laws.[3] The CWA thus allows the states to administer some of their own programs, subject to EPA’s approval.[4] To this end, a number of the nation’s water pollution programs are primarily administered by the states rather than the federal EPA.[5]

The Clean Water Act, by its terms, only applies federal law to “navigable” waters. “Navigable waters” are defined somewhat paradoxically as “waters of the United States.” If that definition seems somewhat unhelpful, you are not alone: the United States Supreme Court has already taken and heard three cases involving the proper reach of the federal Clean Water Act.[6] Earlier this year, a judge issued an opinion which noted “just how difficult and confusing it can be for a landowner to predict whether or not his or her land falls within CWA jurisdiction—a threshold determination that puts the administrative process in motion. This is a unique aspect of the CWA; most laws do not require the hiring of expert consultants to determine if they even apply to you or your property.”[7]

In an effort to resolve the mystery and bring clarity to the boundary line between federal and state jurisdiction, two federal agencies (the EPA, along with the U.S. Corps of Engineers) published a new regulation on June 29, 2015, attempting to define what they consider to be the “waters of the United States” (often referred to as the “WOTUS Rule”).[8] The WOTUS Rule is controversial for several reasons and touched off a series of lawsuits and actions in Congress seeking to change or invalidate the administrative agencies’ new rule.

Thus the law is currently in a state of upheaval – which is problematic for anyone who owns or uses property. According to the enacting agencies, the WOTUS Rule is a reasonable interpretation of Congressional intent, scientific findings, and decisions issued by the U.S. Supreme Court and others. To its critics, the WOTUS Rule is the result of a flawed rulemaking process which failed to take the concerns of interested stakeholders into account, and which oversteps the limited federal power that the Constitution of the United States otherwise reserves to state and local governments.

The national Chamber of Commerce, for example, contends in its lawsuit that the WOTUS Rule potentially will bring more than 8.1 million miles of rivers and streams under federal regulation, as opposed to the approximately 3.5 million miles presently categorized as “waters of the United States.”[9] The Chamber of Commerce thus concludes that under the WOTUS Rule, “virtually any business that owns or operates a facility or has property could be adversely affected, particularly if it has ditches, retention ponds for storm water runoff, fire/dust suppression ponds, or other surface impoundments on site.”[10] The enacting agencies have not yet filed a response to these allegations, and typically have at least sixty days from service of the complaint to respond.[11]

Adding to the confusion, the new WOTUS Rule allows for administrative agencies to use “remote sensing sources,” “desktop tools” and “mapping information” for them to make their determinations – which means that the regulators deciding their jurisdictional reach may be relying on information that is not available to (or is different from) the property owner and its experts (or its lawyers).[12] “Thus,” according to the Chamber of Commerce, “while the [WOTUS] Rule in many cases will clearly apply to lands beyond the reach of the CWA, it will also arguably apply in an even broader swath of cases – cases as innocuous as a landowner seeking to drain storm water from a depression that might (or might not) be considered a puddle, or wishing to dig holes for a fence post in an area that retains waters after storms.”[13]

The enacting agencies, by contrast, contend that these types of claims and concerns are either overblown or that they misunderstand the new WOTUS Rule. According to the enacting agencies, “[t]his rule makes the process of identifying waters protected under the CWA easier to understand, more predictable, and consistent with the law and peer-reviewed science, while protecting the streams and wetlands that form the foundation of our nation’s water resources.”[14] The enacting agencies also contend that the WOTUS Rule has a much more limited impact than do its critics, only estimating more modest increases of “between 2.84 and 4.65 percent in positive jurisdictional determinations annually,” if not an actual decrease in the scope of jurisdictional waters under the CWA.[15] The agencies also contend that the increased costs of implementing the WOTUS Rule will be more than offset by the economic benefits derived from implementing the new rule.[16] One would expect that all of these contentions, in one form or another, are now being challenged in court.

As of today, there are at least nine separate lawsuits challenging the WOTUS rule, brought by 28 individual states (including Georgia and South Carolina), and 29 private parties and trade organizations. These lawsuits, generally, seek injunctions against the implementation of the WOTUS Rule and/or an order declaring the WOTUS Rule invalid. Additional plaintiffs and lawsuits would seem likely as well, and it is fair to say that the myriad of procedural issues surrounding the disputes are quite complex.

Property owners and business owners are, unfortunately, stuck in the middle of this jurisdictional dispute. The WOTUS Rule, according to its critics, may impact properties with only intermittent streams, ditches, stormwater detention ponds, private fishing ponds, and simple generic “wet” spots — even if they are far from what one would consider to be a traditional “navigable water” used for commerce, and even if they have no significant impact on the chemical, physical, or biological makeup of those larger bodies of water. Property owners may be required to hire experts to determine whether their property – which does not front on any significant river or lake – falls under the federal permitting process of the WOTUS Rule and the Clean Water Act. The cost and time involved is not insignificant; the national Chamber of Commerce contends that “[t]he average applicant for a nationwide permit spends 313 days and $28,915 – not counting costs of mitigation or design changes. In addition, over $1.7 billion is spent each year by the private and public sectors to obtain wetland permits.”[17]

When does the WOTUS Rule take effect?

To steal a phrase, the jury is still out. The WOTUS Rule provides by its terms that it takes effect on August 28, 2015.[18] Given the various lawsuits which have already been brought, as well as pending Congressional action aimed at preventing the WOTUS Rule from being implemented, it remains an open question. There are multiple requests to courts to enjoin the implementation of the WOTUS Rule, and the House of Representatives voted at least one bill out of committee to essentially defund agency implementation of the WOTUS Rule. All of these things, however, will take time — perhaps considerable time — to resolve. And given the looming presidential election process which is fast approaching, it is uncertain that the WOTUS Rule – even if it clears all of its hurdles – will ever actually have the effect of law at any date in the future.

So, ultimately, why does this matter to you?

The short answer is, even the enacting agencies recognize that the WOTUS Rule may have a significant impact on consumers and the economy. The enacting agencies concede, for example, that the WOTUS Rule is a “major rule” which is defined as a regulation likely to result in “an annual effect on the economy of $100,000,000.00 or more;” “a major increase in costs” for consumers, industries, government agencies or geographic regions; and/or likely to create “significant adverse effects” on employment or markets.[19] Any person, business, or local government that wants to develop or use land may now be subject to a federally mandated permitting regime which can impose significant cost, expense and complexity on any project. Or, given the multiple pending lawsuits, it may not. The state of affairs thus adds an element of uncertainty as to what, exactly; the applicable law is for the short term.

Thus, ironically, a rule designed to clarify the law may have instead brought more uncertainty than already existed. We will continue to monitor the various lawsuits and legislative activities surrounding the WOTUS Rule, and will be providing an update as events warrant.

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[1] The Clean Water Act specifically limits its intrusion into the states’ traditional authority to regulate land use and water use. See 33 U.S.C. § 1370 (stating that states may adopt “any standard or limitation respecting discharges of pollutants” that are not “less stringent” than federal standards and requirements.)

[2] See, e.g. Ga. L. 1964, p. 416 (Georgia Water Quality Control Act of 1964, O.C.G.A. § 12-5-20 et seq.).

[3] In addition to improving water quality, the Clean Water Act recognizes that states have primary responsibilities to prevent, reduce, and eliminate pollution, and to plan the development of land and water resources. 33 U.S.C. § 1251(b).

[4] 33 U.S.C. § 1342(b).

[5] To date, all states except Idaho, Massachusetts, New Hampshire, and New Mexico have EPA-approved NPDES programs. EPA governs Native American lands. State Program Status, ENVIRONMENTAL PROTECTION AGENCY, http://cfpub.U.S. Environmental Protection Agency.gov/npdes/stormwater/authorizationstatus.cfm (last visited March, 25 2013).

[6] United States v. Riverside Bayview Homes, 474 U.S. 121 (1985); Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001); Rapanos v. United States, 547 U.S. 715 (2006).

[7] Hawkes Co., Inc. v. U.S Army Corps of Engineers, 782 F.3d 944, 1003 (8th Cir. 2015) (Kelly, K., concurring).

[8] 80 Fed.Reg. 37,054 (June 29, 2015).

[9] Chamber of Commerce of the United States of America, et. al. v. EPA, No. 4:15-cv-386, Complaint filed July 10, 2015 at ¶ 83.

[10] Id. at ¶ 85.

[11] FED.R.CIV.P. 12(a)(2).

[12] See 80 Fed.Reg. at 37,076-77 (June 29, 2015).

[13] Chamber of Commerce, supra at ¶ 90.

[14] 80 Fed.Reg. at 37,055 (June 29, 2015).

[15] Id. at 37,101.

[16] Id.

[17] Chamber of Commerce, supra at ¶ 89.

[18] 80 Fed.Reg. at 37,054 (June 29, 2015).

[19] 5 U.S.C. § 804(2).

Image Credit: Africa Studio/Shutterstock.com

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