Waters of the United States Rule

wetlands

In July 2015, EPA finalized a "Waters of the United States" (WOTUS) rule that clarified the scope of protections for American waters under the Clean Water Act. The final rule confirmed that Clean Water Act protection covers wetlands and upland waters that many Americans rely upon for clean, healthy drinking water.


Regulatory Repeal

In February 2017, the president issued an executive order directing the Environmental Protection Agency (EPA) and the Army Corps of Engineers to rescind or revise the WOTUS rule and the additional protections that it applies to U.S. waters. The EPA and the Army Corps subsequently published an interim rule in July 2017 that proposes to scale back Clean Water Act protections. In September 2017, a coalition of nine attorneys general filed comments opposing the repeal, and have vowed to sue the administration if it moves forward with its plan to remove Clean Water Act protections from important wetlands and upland waters.

In response to a July 2018 request for additional comments on the July 2017 interim rule, New York Attorney General Barbara Underwood led 12 attorneys general in submitting comments that requested that the EPA and the Army Corps withdraw the interim rule because the repeal of the 2015 WOTUS rule would be arbitrary and capricious and not in accordance with the Clean Water Act.

In December 2018, EPA and the Army Corps finally released a proposed WOTUS replacement rule that advanced a narrow redefinition of protected “Waters of the United States.”  The proposed rule would require a direct surface hydrological connection before wetlands would be subject to federal jurisdiction under the Clean Water Act. Similarly, a tributary would only receive protection under the Clean Water Act if it is a surface water channel that contributes perennial or internment flow to a traditional navigable water or territorial sea either directly or indirectly through another body of protected water. As a result, EPA documents from 2017 suggest that eighteen percent of streams and fifty-one percent of wetlands that currently fall under Clean Water Act protection would no longer do so. Maryland Attorney General Brian Frosh immediately released a statement promising to oppose the proposed rule.

In February 2019, a representative of New York Attorney General Letitia James testified at a public hearing in opposition to the December 2018 replacement rule. The testimony noted that the proposed replacement rule would sharply reduce the number of bodies of water protected by the Clean Water Act, citing EPA’s 2017 documents. Additionally, the replacement rule would do away with former Supreme Court Justice Anthony Kennedy’s legally- and scientifically-sound “significant nexus” standard, which protects bodies of water that have a “significant nexus” to water quality in other protected bodies of water.

In April 2019, New York General James led a coalition of 15 attorneys general in filing comments in opposition to the proposed WOTUS replacement rule. The comments noted that the proposal would adversely affect water quality, contrary to the Clean Water Act’s objective “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” as the proposal would significantly reduce the wetlands and water bodies that would receive protection under the Act.
  
The attorneys general also commented that the narrow redefinition of the “waters of the United States” abandons the Supreme Court’s governing “significant nexus” standard without adequate explanation or sufficient justification. Additionally, the proposal is arbitrary and capricious in violation of the Administrative Procedure Act (APA) as it is inconsistent with the Clean Water Act and fails to engage with the extensive scientific record that supported the promulgation of the 2015 WOTUS rule. 

In October 2019, the EPA published a final rule that repealed the 2015 WOTUS rule and restored the 1986 regulatory definition of “Waters of the United States.” This recodification rule is the first step in the agency’s effort to promulgate a new, replacement rule defining “Waters of the United States.” 

In January 2020, the EPA completed the second step in its effort to promulgate a new definition of “Waters of the United States.” The agency released its final replacement rule for the 2015 rule, the so-called Navigable Waters Protection rule. The rule narrowed the definition of “Waters of the United States” along the lines it proposed in its December 2018 draft rule, greatly restricting Clean Water Act protection for wetlands and tributaries.  

Immediately after the release of the final rule, California Attorney General Becerra, Massachusetts Attorney General Maura Healey, Maryland Attorney General Frosh, New York Attorney General James, Virginia Attorney General Mark Herring and Washington Attorney General Bob Ferguson released statements expressing opposition to the final rule that guts critical Clean Water Act protections. Later in January 2020, Michigan Attorney General Dana Nessel released her own statement in opposition to the so-called Navigable Waters Protection rule.  


Litigation Over the 2020 Rule

California Federal District Court Litigation

In May 2020, a coalition of eighteen attorneys general led by California Attorney General Becerra and New York Attorney General James filed a lawsuit in a California federal district court against the EPA challenging its Navigable Waters Protection rule. In their suit, the attorneys general asserted that the 2020 rule is unlawful under the APA and noted that the drastically narrowed definition of “Waters of the United States” conflicts with the text of the Clean Water Act and contradicts the Clean Water Act’s objectives. The coalition also highlighted that the rule overlooks the EPA’s prior scientific findings and recommendations from the EPA’s Science Advisory Board, and arbitrarily and capriciously reduces and eliminates protections for downstream waters, including ephemeral streams and wetlands.

Less than three weeks later, the coalition of attorneys general returned to the same federal district court in California to seek a preliminary injunction to prohibit the implementation of the Navigable Waters Protection rule. The motion from the attorneys general asserted that a preliminary injunction is necessary to prevent significant and irreparable harm to waterways across the country as the rule weakens water quality protections, including for formerly protected streams and wetlands.

In June 2020, the California federal district court determined that the states had not met the standard for granting the preliminary injunction request and rejected the motion for preliminary injunction. In November 2020, California Attorney General Becerra led the coalition of attorneys general in filing a motion for summary judgment in the litigation. The motion noted that the agency process to issue the Navigable Waters Protection rule was arbitrary and capricious in violation of the APA as the EPA and the Army Corps did not explain how the rule met the Clean Water Act’s objective of maintaining the integrity of the Nation’s waters. Further, the attorneys general argued that the rule represents an impermissible interpretation of the Clean Water Act under relevant Supreme Court precedent because it excludes ephemeral streams from protection under the statute.

Colorado Federal District Court Litigation

At the end of May 2020, Colorado Attorney General Phil Weiser filed a lawsuit challenging EPA’s Navigable Waters Protection rule in the federal district court in his state. The lawsuit requests the court declare the rule unlawful because it was promulgated in violation of the Clean Water Act, the APA and the National Environmental Policy Act. Further, Attorney General Weiser is seeking injunctive relief in the form of prohibiting the EPA and Army Corps of Engineers from using, applying, implementing, enforcing or otherwise proceeding on the basis of the final rule. 

A few weeks later in June 2020, the Colorado federal district court granted Attorney General Weiser’s motion for preliminary injunction. The federal judge found that Colorado had established that the state was likely to succeed on the merits in its challenge to the 2020 rule, that the state would likely suffer irreparable harm in the absence of preliminary relief, that the balance of equities tipped in Colorado’s favor, and that an injunction is in the public interest.

Within a week of the June 2020 order, the EPA and Army Corps filed a notice of appeal of the preliminary injunction order in the Tenth Circuit. In July 2020, the EPA and the Army Corps filed their opening brief in the Tenth Circuit seeking to have the preliminary injunction lifted. 

In August 2020, Colorado Attorney General Weiser filed his state’s answer brief, noting that the Colorado federal district court had properly determined that Colorado had satisfied the four factors required for it to obtain a preliminary injunction. Specifically, the state was likely to succeed on the merits; the state was likely to suffer irreparable harm in the absence of preliminary relief; the balance of equities tipped in the state’s favor; and the public interest favored preserving the status quo. The brief requested the Tenth Circuit affirm the district court’s order. Oral arguments were held in the Tenth Circuit in November 2020. In March 2021, the Tenth Circuit vacated the injunction. 

Massachusetts Federal District Court Litigation

In April 2020, a coalition of environmental organizations filed a lawsuit in federal district court in Massachusetts challenging the Navigable Waters Protection rule. The environmental organizations filed a motion for summary judgement in the litigation in October 2020. 

In December 2020, Massachusetts Attorney General Healey led a coalition of 15 attorneys general in filing an amicus brief in support of the motion for summary judgment. The coalition highlighted that the reasoning the administration relied on to justify the rollback was contrary to the purpose of the Clean Water Act. In addition, the coalition noted that by declining to conduct a comprehensive review of the scope of waters that would be left unprotected by the regulation and ignoring that the rule’s reduction in federal protections will lead to serious degradation of ecological resources, the administration disregarded the significant harms that the regulation will inflict on states.


Litigation Over the 2015 Rule

In January 2018, the Supreme Court ruled that litigation over the WOTUS rule must begin in federal district courts. Currently, several federal district courts across the country are hearing challenges to the 2015 WOTUS rule. The EPA published a final rule to suspend the applicability date of the 2015 WOTUS rule by two years in January 2018.

New York Federal District Court Litigation

In February 2018, the New York Attorney General led a coalition of 11 attorneys general that challenged the suspension rule in federal district court in New York. In March of the following year, the federal district court dismissed as moot the suit by New York and other states as EPA voluntarily dismissed their appeals in the Fourth and Ninth Circuit Court of Appeals of district court orders that vacated the suspension rule.

Following the publication of the October 2019 recodification rule (above), New York Attorney General Letitia James led a coalition of fifteen attorneys general in December 2019 in filing a separate legal challenge to the recodification rule in federal district court in New York. The lawsuit noted that the recodification rule is arbitrary and capricious in violation of the APA because it fails to apply controlling Supreme Court case law. The attorneys general requested that the court declare the recodification rule unlawful and vacate it. 

South Carolina Federal District Court Litigation

In August 2018, a federal district court in South Carolina issued an injunction that lifted the suspension rule in 22 states. The court found that the EPA and the Army Corps, in issuing the suspension rule, had not solicited the requisite public comments on suspending the 2015 rule and had failed to consider the substantive implications of suspending the 2015 rule.

Ohio Federal District Court Litigation

In March 2019, Michigan Attorney General Dana Nessel withdrew Michigan from litigation in which the state was a part of a coalition of states challenging the 2015 WOTUS rule in federal district court in Ohio.

Also in March 2019, a federal district court in Ohio denied a motion for a preliminary injunction to block the effectiveness of the 2015 WOTUS rule in two of the 22 states in which the South Carolina federal district court order had lifted the suspension rule. The Ohio district court order also granted a motion from a coalition of 10 attorneys general led by the New York Attorney General to participate in the Ohio district court litigation as amici.

In May 2019, plaintiff states Ohio and Tennessee filed a notice of appeal with the Ohio federal district court of the denial of the preliminary injunction to block effectiveness of the 2015 WOTUS rule. The appeal followed the district court’s denial of the states’ request to reconsider the denial of the preliminary injunction earlier in May. In August 2020, the Sixth Circuit dismissed the appeal as moot due to the repeal of the 2015 WOTUS rule.

North Dakota Federal District Court Litigation

In March 2019, Colorado Attorney General Weiser withdrew his state from litigation in which Colorado was part of a coalition of states challenging the 2015 WOTUS rule in litigation in federal district court in North Dakota. Three days later New Mexico Attorney General Hector Balderas withdrew his state from the same coalition of states in the North Dakota litigation. In May 2019, the federal district court in North Dakota granted the motions by Colorado and New Mexico, which lifted the preliminary injunction of the 2015 WOTUS rule in at least Colorado (the court order was unclear as to whether the preliminary injunction would remain in effect in parts or all of New Mexico as a coalition of ten New Mexican counties are challenging the 2015 rule).

Georgia Federal District Court Litigation

In April 2019, Wisconsin Attorney General Josh Kaul withdrew Wisconsin from litigation in federal district court in Georgia in which it was a member of a coalition of states opposing the 2015 WOTUS rule.