Written by Ellen Essman
You’re never going to make everyone happy. This is especially true when it comes to the federal definition of “waters of the United States,” or WOTUS, under the Clean Water Act (CWA). The definition of WOTUS has changed over the years in order to adapt to numerous court decisions. The Obama administration’s 2015 rule has been litigated so much that a patchwork of enforcement has been created across the country, with some states falling under the 2015 rule and others falling under the previous iterations of the rule from 1986 and 1988. In fact, in New Mexico, parts of the state follow one rule and other parts follow the other. You can see the current state breakdown here.
To add even more chaos to all of this confusion, the Trump administration decided to repeal and replace Obama’s 2015 rule. In September, a rule was announced that would repeal the 2015 WOTUS rule and replace it with the 1986 and 1988 rule. This reversion would not be permanent; the 1986/1988 rule is simply a placeholder until the EPA and Army Corps of Engineers finalize a new WOTUS rule to replace it. The repeal is set to become effective in December. You can read our blog post on the repeal here.
Of course, there are those who are unhappy with the 1986/1988 rule being reinstated, even if only for a time. In October, two lawsuits were filed against the EPA and Army Corps of Engineers in federal district courts. In South Carolina, environmental groups sued because they feel that the 1986/1988 rules do not go far enough to protect waters. On the other hand, in the New Mexico Cattle Growers’ Association sued because they feel that returning to the 1986/1988 rules goes too far in regulating water. Below, we will briefly break down the arguments in each of these lawsuits.
South Carolina lawsuit
Following the October repeal announcement, environmental groups, including the South Carolina Coastal Conservation League and the Natural Resources Defense Council, sued the EPA and U.S. Army Corps of Engineers in the U.S. District Court for the District of South Carolina, Charleston Division, claiming that the repeal rulemaking was unlawful. In their complaint, the environmental groups make several arguments. They allege that the repeal rulemaking violates the Due Process Clause, Administrative Procedure Act (APA), and Supreme Court precedent. They say that the Due Process Clause has been violated because the rulemaking was not undertaken with an open mind, instead it was already pre-judged or all but decided before the process even started. They cite many violations of the APA—including failing to provide a “reasoned explanation” for the repeal, failing to discuss alternatives to repealing the rule, and failing to provide a meaningful opportunity for public comment on the rulemaking. Additionally, the environmental groups claim that the repeal “illegally departs from Justice Kennedy’s” opinion in the Rapanos case. Ultimately, Kennedy’s opinion in Rapanos is what led the EPA and Corps to scrap the 1986/1988 rule and create the 2015 rule to be more consistent with that opinion. Therefore, the environmental groups argue that going back to the 1986/1988 version would violate Kennedy’s “significant nexus” test for WOTUS, which invalidated the old version of the rule. In other words, the environmental groups believe that going back to the 1980s rules will result in less waters being protected.
New Mexico lawsuit
The New Mexico Cattle Growers’ Association (NMCGA) sued the EPA and the U.S. Army Corps of Engineers in the U.S. District Court for the District of New Mexico. In the complaint, NMCGA asks the court to enjoin, or stop the enforcement of the repeal rule, claiming that the rule violates the CWA, the Congressional Review Act, the Commerce Clause, the Due Process Clause, the Non-delegation Doctrine, and the Tenth Amendment. The NMCGA’s argument hinges on the definition of “navigable waters.” Under the CWA, “navigable waters” are the same as WOTUS. Like the environmental groups in South Carolina, NMCGA interprets the Rapanos decision as invalidating provisions of the 1986/1988 WOTUS rule. NMCGA, however, reads Rapanos as limiting “navigable waters” to only the waters that are actually navigable, or “navigable-in-fact.” Thus, unlike the environmental groups, NMCGA believes that both the 1986/1988 rule and the 2015 rule result in more waters being regulated than is allowed under the CWA and Supreme Court decisions.
Will the tide turn on WOTUS in the future?
Despite the Trump EPA’s repeal and upcoming replacement of the 2015 rule, the future of WOTUS is anything but certain. The lawsuits in South Carolina and New Mexico are just the latest proof of that. What is more, the lawsuits to enjoin the 2015 rule are still ongoing, and it is unclear whether they will be wiped out when the repeal rule becomes effective in December. When the replacement rule is finally published, there is no doubt even more lawsuits will follow. It’s also important to remember that we have an election next year, so if there’s a new administration, they’ll probably put their own stamp on WOTUS.