The final rule marking the death of the 2015 Waters of the U.S. (WOTUS) rule went live last week, over a month after the initial announcement. And with that official publishing in the Federal Register came the first lawsuit, though not from a source you might expect.
On Thursday, Sept. 12, Environmental Protection Agency (EPA) Administrator Andrew Wheeler and Department of the Army Assistant Secretary of the Army for Civil Works R.D. James announced they had signed the final rule to repeal the 2015 WOTUS rule. The announcement noted that the repeal would happen 60 days after it was published in the Federal Register. That happened on Tuesday, Oct. 22, putting the official repeal date Dec. 23, 2019.
According to the EPA’s announcement of the final rule, there were four primary reasons for the repeal:
• The EPA and Army Corps of Engineers (Corps) determined the 2015 “did not implement the legal limits on the scope of the agencies’ authority under the Clean Water Act (CWA)” as intended by Congress and set by past Supreme Court cases, especially the “significant nexus” test from the Rapanos v. United States case;
• The 2015 rule did not “adequately consider and accord due weight” to states’ responsibilities related to water quality;
• To avoid CWA interpretations that overstep the agencies’ statutory jurisdictions; and
• The 2015 rule’s “distance-based limitations” related to the significant nexus determinations “suffered from certain procedural errors and a lack of adequate record support.” In many of the lawsuits against the 2015 rule, the distance limitations were called “arbitrary and capricious” under the Administrative Procedures Act.
“With this final rule, the regulations defining the scope of federal CWA jurisdiction will be those portions of the [Code of Federal Regulations] as they existed before the amendments promulgated in the 2015 Rule,” read the EPA’s announcement.
The final rule repealing the 2015 WOTUS rule can be found online here.
A new WOTUS suit
Also on Oct. 22 came the announcement of the first lawsuit against the 2015 WOTUS rule repeal. Rather than coming from an environmental group, however, the lawsuit was filed by the Pacific Legal Foundation (PLF) on behalf of the New Mexico Cattle Growers Association.
“The old rules that EPA is using now have been ruled unconstitutional by the Supreme Court,” said PLF Senior Attorney Tony Francois in the group’s announcement of the suit.
According to the complaint document—filed against the EPA, Wheeler in his capacity as EPA administrator, the Corps, and James in his capacity as the assistant secretary in the U.S. District Court of New Mexico—the pre-2015 regulations are unconstitutional due in large part to the expansive definition of “navigable waters” in the CWA.
“In 1986, the Environmental Protection Agency and Army Corps of Engineers adopted regulations that interpreted the term ‘navigable waters’ broadly to include extensive non-navigable waterbodies and features upstream of and even isolated from navigable-in-fact rivers and lakes,” reads the complaint document. The recent repeal means these 1986 regulations will return to force, something the complaint describes as “arbitrary and capricious, and contrary to law, in violation of the Administrative Procedure Act.”
The plaintiffs seek several claims for relief. Among them are:
• Non-navigable tributaries and wetlands, and interstate waters that are not navigable in fact (such as isolated lakes or ponds that lie across state borders and/or are used to water crops that are traded across state lines) not be categorically included in the definition of “navigable waters” as per the majority ruling in the Rapanos case;
• The 1986 regulations be open to a public comment process according to the Administrative Procedures Act;
• Elements of the 1986 regulations mostly concerned with small water bodies that have been found to violate states’ responsibilities and exceed the scope of the Commerce power be removed;
• The 2008 post-Rapanos guidance be readopted in the current 2015 WOTUS rule repeal; and
• The court issue an injunction against the 1986 regulations being applied.
“While it is good that EPA is repealing the 2015 rule, the older rules the agency is now enforcing have many of the same legal defects,” Francois said in the announcement of the suit.
“The problem here is that for decades, not just since 2015, EPA has sought to use its Clean Water Act authority over navigable lakes and rivers to regulate puddles and dry arroyos on private property all over the country. This is the trend that has to be turned back.”
Environmental suit
PLC wasn’t the only group launching a lawsuit over the 2015 WOTUS rule repeal. On Wednesday, Oct. 23, a coalition of 11 different environmental groups filed suit in the District Court of South Carolina. The group included Defenders of Wildlife, National Wildlife Federation, and the Natural Resources Defense Council, among other more local groups.
The coalition’s complaint document calls the repeal the agencies’ “latest arbitrary and unlawful attempt to repeal the clear protections of the Clean Water Rule.”
The 2015 WOTUS rule was also called the “Clean Water Rule.”
Citing many of the same court cases as cited in the New Mexico Cattle Growers Association case, the coalition of environmental groups claim the cases “repeatedly affirmed that federal protections extend to wetlands and streams that are not ‘navigable in fact[.]’”
The environmental groups’ suit however seems to agree with the cattle group’s suit in that they see the pre-2015 WOTUS rule regulations as illegal.
This case challenges the administration’s arbitrary and unlawful attempt to repeal the protections of the Clean Water Rule,” the complaint document read.
“[T]he manner in which the repeal has been carried out—in essence, by executive fiat—betrays an extraordinary disregard for federal rulemaking requirements and the views of the American public. The Final Repeal Rule also reinstates an illegal regime—the regulations that pre-dated the Clean Water Rule as limited by guidance … —that runs contrary to Supreme Court precedent, unlawfully leaving certain waters of the United States unprotected due to the guidance’s unduly narrow interpretation of Justice [Anthony] Kennedy’s significant-nexus test.”
The suit requests the court declare the repeal effort arbitrary and unlawful and vacate it, which would effectively reinstate the 2015 WOTUS rule. — Kerry Halladay,WLJ editor
