Legal Fights Over Clean Water Act Rule Expected to Continue in 2020
2020 promises to bring more action in the ongoing saga over rules intended to define the extent of Waters of the United States (WOTUS) subject to federal Clean Water Act (CWA) jurisdiction. Readers may recall that back in 2015 during the Obama administration, USEPA and the Department of the Army published a rule that attempted to define waters, including wetlands, that were subject to CWA jurisdiction because they had a “significant nexus” to a navigable water, a standard originally announced in the 2006 Supreme Court decision in Rapanos v. United States.
The 2015 rule spawned a series of lawsuits arguing that the rule improperly expanded federal authority, some of which resulted in court rulings that enjoined enforcement of the 2015 rule in certain jurisdictions. Additionally, in 2017, the Trump administration issued an executive order directing USEPA and the Army to review and either revise or rescind the 2015 rule. The agencies subsequently issued a series of notices that stated the agencies would repeal and recodify the 2015 rule, and then published a final rule that postponed the applicability date of the 2015 rule until February 2020. The rule postponing the applicability of the 2015 rule was also challenged in several district courts. The legal challenges resulted in a patchwork framework leaving the 2015 rule in effect in 22 states, but subject to preliminary injunctions in 27 states.
In October 2019, the USEPA and Department of the Army issued the final rule repealing the 2015 rule and reinstating 1986 regulations. That action resulted in its own series of legal challenges, including lawsuits by environmental groups in South Carolina and landowners in New York challenging the repeal, a lawsuit by a cattle growers association in New Mexico arguing that simply reverting back to the 1986 rules (as opposed to issuing new rules) was unlawful, and a recent lawsuit by sixteen states and cities filed in the southern district of New York, challenging the repeal and return to the 1986 regulations.
Notwithstanding these legal challenges, the USEPA and the Army have continued to work on a replacement for the 2015 rule. The agencies signed a proposed new WOTUS rule in December 2018, for which the comment period ended in April 2019. The agencies have indicated that this new rule could be published as a final rule in February 2020, which will undoubtedly trigger more lawsuits and potentially more jurisdiction by jurisdiction decisions. And looming over all these activities is the 2020 election and the possibility that a new administration might change course yet again. So, while events in 2020 may not provide final answers on all WOTUS questions, they will bear watching as they will likely lay the groundwork on the scope of CWA jurisdiction for years to come.