The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers kicked a hornet’s nest in rural America when they made moves to establish a definition of “Waters of the United States” (WOTUS) under the Clean Water Act (CWA). After all, the CWA has been in effect for 40 years without a codified definition elaborating on the specifics of the federal government’s jurisdiction. Not that there hasn’t been controversy, but spats over jurisdiction have usually been resolved through the federal court system, not administrative rule-making.
However, a 2006 Supreme Court case—Rapanos v. U.S.—provided an opening for the federal government to expand its jurisdiction. The dispute in the case was whether a wetland adjacent to a jurisdictional waterway also fell under CWA jurisdiction. In Rapanos, the Supreme Court reached a rare 4-1-4 decision, which essentially allows for two different interpretations. The “plurality” opinion held a wetland is jurisdictional only if there is a surface connection between the wetland and a jurisdictional waterbody—a rather straightforward standard.
However, Justice Kennedy’s “concurrence” opinion substantially muddied the waters moving forward. Instead of requiring a surface water connection, he reasoned a non-navigable waterbody falls under the CWA’s jurisdiction so long as it has a “significant nexus” to a traditional navigable waterway.
Faced with two possible interpretations, the federal government, naturally, chose the interpretation that provides it with more authority over waterways: Justice Kennedy’s significant nexus test. Under the significant nexus test, a non-navigable water is deemed jurisdictional if it significantly affects the “chemical, physical and biological integrity” of a navigable waterway. This interpretation allows EPA and the Corps authority over waterways—even if they don’t have a surface water connection with jurisdictional waters.
Although the significant nexus test provides the federal government with greater authority, it’s a rather vague standard. When EPA and the Corps tried to put this standard into writing as the proposed WOTUS rule, it was not well-received—for good reason. It was complicated and vague, raising more questions than it answered. The only certainty was it would increase federal authority to regulate land use.
The final rule, rebranded as the Clean Water Rule, landed in the federal court system shortly after it was released. Nearly a dozen lawsuits were filed to stop the rule from going into effect. At this point, one of those lawsuits has succeeded in delaying the implementation of the WOTUS rule. Judge Ralph Erickson, a North Dakota federal judge, granted a preliminary injunction motion filed by North Dakota’s attorney general and 12 other states. This decision will pause implementation of the WOTUS rule in these 13 states while the parties litigate the matter.
Judge Erickson’s decision sheds some light on the weaknesses of the WOTUS rule, noting it allows EPA to regulate waters that do not bear any effect on the “chemical, physical and biological integrity” of navigable waters. The court criticized the feds for defining a jurisdictional tributary more broadly than allowed under the significant nexus test, holding the rule includes “vast numbers of waters that are unlikely to have a nexus to navigable waters within any reasonable understanding of the term.” Furthermore, Judge Erickson held EPA likely acted arbitrarily in promulgating the WOTUS rule because it failed to establish a scientific basis for large portions of the rule.
While EPA and the Corps have lost this preliminary round, the fight over the WOTUS rule has just begun. It will not likely end until the Supreme Court weighs in on the matter.
This column is not a substitute for legal advice.