The federal Clean Water Act created federal jurisdiction over “navigable waters” defined as “United States waters” (WOTUS). Since it became law in 1972, the debate over what is, and is not, WOTUS has been robust.
The 2006 Supreme Court decision in Rapanos v. United States embodied the challenges of finding consensus on what should be regulated as WOTUS. A four-vote majority opinion drafted by Justice Scalia proposed a relatively narrow definition to include only relatively permanent or continuously flowing water bodies and only wetlands with a continuous surface connection to WOTUS. Justice Kennedy issued a separate opinion partly in agreement with Scalia’s plurality, but introducing an additional assessment requiring that a “significant connection” between the wetlands and the waterway in question be considered WOTUS. Kennedy’s significant connection test has generally been used since, and most federal appellate courts consider this test to be determinative.
The US Army Corps of Engineers and the EPA are the agencies responsible for regulating WOTUS. In 2015, the Obama EPA and Corps promulgated the Clean Water Rule which broadened federal jurisdiction by adopting a broad view of the Kennedy Justice “significant connection” test. Not to be outdone, the Trump EPA and Corps in 2020 repealed the Clean Water Rule and adopted its own Navigable Waters Protection Rule (NWPR) which significantly reduced the scope of federal jurisdiction making it more in line with this. plurality of Scalia.
Unsurprisingly, the Biden administration ordered a review of all of Trump’s rules on day one. On June 9, 2021, the EPA and Biden’s Corps announced their intention to revise the definition of WOTUS, possibly for something more in line with the Clean Water Rule. ANNOUNCEMENT However, when considering revisions, the agencies left the NWPR in place. For our preliminary discussion on the proposed rule, click HERE.
Most recently, on August 30, 2021, a Ct. Federal District in Tucson in Pasqua Yaqui Tribe, et. al, v. EPA, N ° CV-20-00266 (D. AZ August 30, 2021) went further and not only returned the NWPR to the agencies at the request of the plaintiff Tribes, but also canceled it, believing that it contains serious errors and that leaving it in place could result in serious environmental damage. DECISION
So what now? Subsequent agency guidance indicates that this decision will be enforced nationally and that requests pending “approved jurisdictional boundary” will be considered under the important link test that predated both the Obama Clean Water Rule and the Trump NWPR. Existing AJDs issued under the NWPR will remain in effect subject to their five-year lifespan, after which further review may take place under a different set of rules if projects are not completed within the five-year timeframe.
Recognizing the challenges posed by the court’s decision to not only return but also evacuate, many Arizona-based business groups on October 26, 2021, filed a motion to stay the decision noting in part that the “development process of current rules would likely subject companies to three different comprehensive regulatory regimes in a short period of time.
ADEQ, in a letter dated October 1, 2021 to the EPA on the subject, succinctly noted the following: “The continued change in the definition of WOTUS in recent years has created uncertainty and confusion for thousands of Arizona residents, businesses and regulators. ” Exactly!