WOTUS: A Never-Ending Story
On April 21, 2020, the US Environmental Protection Agency and the Army Corps of Engineers published in the Federal Register the Navigable Waters Protection Rule (NWPR) in an effort to redefine “waters of the United States” (WOTUS). Unless blocked by courts, the rule will take effect on June 22, 2020.
The final rule, which was first released on January 23, 2020, is intended to replace the Obama administration’s controversial 2015 WOTUS rule, which many argue expanded federal jurisdiction to include a wide range of waters that should be beyond the scope of the Clean Water Act (CWA). The new rule purports to scale back what has been interpreted as the prior administration’s overreach and departs from Justice Kennedy’s “significant nexus” standard, as articulated in Rapanos v. United States. In so doing, the new rule, among other things, excludes certain types of waters from federal jurisdiction, such as ephemeral streams. “Adjacent wetlands,” on the other hand, are subject to CWA requirements under the NWPR as long as they are shown to have a meaningful connection to other jurisdictional waters by directly abutting or having regular surface water communication with such waters.
Predictably, after the final rule was published, several environmental groups as well as 17 states have filed lawsuits challenging the new NWPR, arguing that the new rule goes too far in restricting federal jurisdiction under the CWA. Meanwhile, the New Mexico Cattle Growers’ Association filed suit arguing that federal jurisdiction over the nation’s waters should be further narrowed.
As with previous WOTUS rules, we expect litigation to persist and for the definition of WOTUS to continue to be the subject of controversy. Generally, if the new rule is blocked by the courts in some or all of the country, pre-2015 agency guidance will apply, likely resurrecting Justice Kennedy’s significant-nexus test from Rapanos v. United States in those areas.