Published in February 2020 Focus on the Environment Newsletter
On January 23, 2020, Andrew Wheeler, Administrator of the U.S. EPA, and R.D. James, Assistant Secretary of the Army for Civil Works (U.S. Army Corps of Engineers), signed the Navigable Waters Protection Rule, which is the Trump administration’s replacement of the Obama-era Waters of the United States rule of 2015.
This rule is somewhat different than the proposed rule, released on December 11, 2018 that defined six categories of Federal jurisdictional waters. The newly signed rule has only four categories because of revisions made based on the comments that were received regarding the proposed rule. The four d categories are now:
The rule clarifies factors that determine whether wetlands are adjacent, and are therefore jurisdictional and exempts groundwater, ephemeral features, and water bodies not included in the list above from being jurisdictional waters of the United States. EPA and the Corps of Engineers produced a fact sheet that summarizes the new rule.
The changes are not in line with the precedent set by the U.S. Supreme Court’s 2006 ruling (Rapanos v.United States) in which Justice Anthony Kennedy stated that the Clean Water Act protects wetlands and waterways that have a “significant nexus” to navigable waters. The definition of “significant nexus” was ill defined, which caused some confusion and numerous lawsuits. The 2015 Waters of the U.S. (WOTUS) rule was supposed to clarify what waters were covered by the rule, although many States and private entities filed lawsuits regarding the rule. The result was a mixture of states covered by the rule – 22 states covered, 27 not covered, and some counties in New Mexico covered and some not. Upon issuing the repeal of the 2015 rule in September 2019, some court cases were dropped as the issues became moot. Following the repeal, more lawsuits were filed that challenged the repeal. On January 23, 2020, Ohio and Tennessee filed a brief with the 6th Circuit of the U.S. Court of Appeals stating:
“In light of that 2019 Repeal, the federal agencies and the Intervenors argue that this case is moot, either constitutionally or prudentially. But the ongoing challenges to the 2019 Repeal defeat that argument. A case is constitutionally moot “only if it is impossible for a court to grant any effectual relief whatever.” Mission Prod. Holdings v. Tempnology, LLC, 139 S. Ct. 1652, 1660 (2019) (quotation omitted).”
In addition to the litigation filed against the September 2019 repeal rule, environmental and conservation groups have announced that they plan litigation against the Navigable Waters Protection Rule. Based on the historical opposition and disputes regarding what waters should be protected by Federal law, we should expect additional lawsuits will continue to tie up this issue, perhaps for years to come. Until it is settled, industries, developers, ranchers, and farmers, etc., may have to weigh the advantages of proceeding in accordance with the new law versus the risks of being in violation of previous laws if the courts enjoin or order an injunction against the new law.
Another thing to consider is that states regulate non-jurisdictional waters; i.e., those that do not fall under federal jurisdiction. Chapter 6111 of the Ohio Revised Code (Water Pollution Control) is the law that regulates surface water management in the state. This include isolated (non-jurisdictional) wetlands. In section 611.01(H), waters of the state are defined as:
“Waters of the state” means all streams, lakes, ponds, marshes, watercourses, waterways, wells, springs, irrigation systems, drainage systems, and other bodies or accumulations of water, surface and underground, natural or artificial, regardless of the depth of the strata in which underground water is located, that are situated wholly or partly within, or border upon, this state, or are within its jurisdiction, except those private waters that do not combine or effect a junction with natural surface or underground waters.
From this definition, it suggests that if a water body does not fall under Federal jurisdiction, it does fall under the laws of the State of Ohio. It is interesting to note that groundwater is a water of the state, even though it has been exempted from coverage under the Clean Water Act by the Navigable Water Protection Rule.
Steve Williamson is a Senior Scientist with Cox-Colvin & Associates, Inc. He holds a BS degree in Environmental Health and an MS degree in Hydrogeology from Wright State University. Mr. Williamson has over 30 years' experience working on brownfields, solid and hazardous waste, and groundwater contamination projects in Ohio and the Midwest.