When is a WOTUS not a WOTUS?

September 3, 2015
Jonathan E. Rinde and Christopher D. Ball
MGKF Special Alert

On August 27, 2015, the day before the rule defining the scope of the term WOTUS promulgated by the U.S. Army Corps of Engineers (the "Corps") and the U.S. Environmental Protection Agency ("EPA") (collectively the "Federal Agencies") took effect, the District Court for the District of North Dakota granted a motion for a preliminary injunction filed by 13 states, thereby blocking the implementation of the Corps' and EPA's new WOTUS rule.  (In addition to North Dakota, the plaintiff states are: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, South Dakota and Wyoming.)  The Federal Agencies' response to the court's opinion was to declare that the new WOTUS rule went into effect in all other jurisdictions except for the 13 plaintiff states. 

In issuing its ruling, the court found several substantive and procedural deficiencies with the new WOTUS rule, which was originally proposed on April 21, 2014 (79 Fed. Reg. 22,188) and then finalized on June 29, 2015 (80 Fed. Reg. 37,053).  For example, the court was troubled by the breadth of the definition of the term "tributary," and the definition's lack of the concept of a "significant nexus" to navigable-in-fact waters, which was the test for federal jurisdiction articulated by Justice Kennedy in the U.S. Supreme Court decision in Rapanos v. U.S., 547 U.S. 715 (2006).  The court stated that the definition of tributaries in the new WOTUS rule, which was defined solely by physical features of a bed and bank and an ordinary high water mark, "includes vast numbers of waters that are unlikely to have a nexus to navigable waters within any reasonable understanding of the term."  The court was also unable to determine the scientific basis for the Federal Agencies' rule that any wetland within 4,000 feet of a WOTUS was also within federal jurisdiction.  The court noted that "on the record before the court, it appears that the [4,000 foot] standard is the right standard because the Agencies say it is." 

The court also ruled that the Federal Agencies' promulgation of the new WOTUS rule likely violated the Administrative Procedures Act ("APA"), stating that on the very limited record before it, it found the Federal Agencies' decision-making process "inexplicable, arbitrary and devoid of a reasoned process."  The court concluded that the Federal Agencies violated the APA in the final definition of the term "neighboring," which defines the jurisdiction of waters neighboring navigable-in-fact waters, since it found that the final definition was "not likely a logical outgrowth of its definition in the proposed rule." 

The Federal Agencies' response to the court's opinion was swift and uncompromising.  "The Clean Water Rule is fundamental to protecting and restoring the nation's water resources that are vital for our health, environment and economy," EPA spokeswoman Melissa Harrison said.  The preliminary injunction only applies to the thirteen plaintiff states -- "In all other respects, the rule is effective on August 28,"  Harrison added.  

There are fourteen petitions for review filed in different federal appeals courts, all of which have been consolidated, at EPA's request, by the Judicial Panel on Multidistrict Litigation ("JPML") in the Sixth Circuit.  Other lawsuits have been filed in federal district courts, rather than the appeals court.  In those actions, federal district courts in West Virginia and Georgia have declined to issue preliminary injunctions, while other district courts have not yet ruled or have stayed their cases until the JPML rules. 

With the multitude of legal challenges filed against the Federal Agencies on the new WOTUS rule, the decision by the federal court in North Dakota is certainly not the end of the story.  For additional information please contact Jonathan Rinde (jrinde@mankogold.com or 484-430-2325) or Christopher Ball (cball@mankogold.com or 484-430-2358).