Back on the Merry-Go-Round: Efforts to Expand Federal Clean Water Act Jurisdiction Expected in 2021
During 2020, the Trump administration completed its efforts to narrow the scope of a 2015 rule intended to define the extent of Waters of the United States subject to federal Clean Water Act (CWA) jurisdiction, but it is likely that the incoming Biden administration will take steps to revert back to the 2015 rule. In April 2020, the Trump administration published a final version of its “Navigable Waters Protection Rule”, which set out four categories of waters that would be federally regulated, and 12 categories of non-jurisdictional waters, including ephemeral waters, groundwater, most ditches, prior converted cropland, and waste treatment systems. A number of environmental organizations and a group of states and cities appealed the rule, which went into effect in June, in various jurisdictions, but only a federal judge in Colorado suspended implementation of the rule in that state.
Shortly after publication of the Navigable Waters Protection Rule, the Supreme Court issued a decision in County of Maui v. Hawaii Wildlife Fund and held that a CWA permit was required for point sources that discharge pollutants to groundwater if that discharge is the “functional equivalent of a direct discharge” to navigable waters. The Court declined to define “functional equivalent”, but instead provided seven factors that should be evaluated in any given situation, the most important being transit time and distance. In December, the Trump administration released its own draft guidance on how to apply the Maui decision going forward, adding another factor: pollutant composition and concentration at the time it enters the navigable water as compared to the initial discharge. The draft guidance was published in the Federal Register for public comment, and comments are due by January 11, 2021.
The incoming Biden administration is expected to take steps to undo the Trump administration’s efforts to narrow the scope of CWA permitting. In the near term, it is likely that Biden’s Department of Justice will seek a stay of the pending litigation over the Navigable Waters Protection Rule, to allow the administration to evaluate its substantive and procedural options to revise the rule. Furthermore, it is expected that EPA will withdraw the recently published guidance on applying the Maui decision and eventually replace it with guidance that reads the Supreme Court’s decision more broadly. Any of these actions will likely result in lawsuits filed by the same groups that opposed the 2015 rule. Some of those lawsuits enjoined enforcement of the 2015 rule in certain jurisdictions, which resulted in a patchwork framework where the applicable federal rule depended upon the particular state.