Clash Over the Definition of “Waters of the U.S.”

Posted by on March 13, 2017

By Anna Rasmussen*

On June 29, 2015 the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) published The Clean Water Rule.[1]

Almost immediately upon its publication, the Clean Water Rule raised concerns both from those who believe the rule gives too much and too little jurisdiction to the federal government. The purpose of the rule, according to the EPA and Corps, is to “ensure protection for the nation’s public health and aquatic resources, and increase the Clean Water Act (CWA) program’s predictability and consistency by clarifying the scope of ‘waters of the United States’ protected under the Act.”[2] This issue of what constitutes “waters of the United States” (WOTUS) is of particular importance because only waters so described fall under the regulations set forth in the Clean Water Act.[3]

Challenges to the Clean Water Rule were filed in many different district courts. The U.S. District Court for North Dakota issued a preliminary injunction of the Clean Water Rule on August 27, 2015 finding that the rule grants “exceptionally expansive” jurisdiction to the federal government.[4] On October 9, 2015, the Sixth Circuit U.S. Court of Appeals issued a nationwide stay of the Clean Water Rule while it considers the case on appeal.[5] In February 2016, a divided Sixth Circuit decided that the Sixth Circuit was the proper Court to hear the case, and the federal district courts with pending cases, did not have jurisdiction over challenges to the Rule.[6] Based on the finding that the Sixth Circuit has jurisdiction, other courts, such as the Eleventh Circuit, have dismissed actions in their courts.[7]

As the Sixth Circuit case proceeds, different organizations have come out to either support or abolish the Clean Water Rule. On November 1, 2016, the Sixth Circuit began accepting opening briefs, and numerous strong proponents and opponents of the rule have submitted briefs to the court.[8]

Opponents to the Clean Water Rule

On September 20, 2016, the U.S. Senate Committee on Environment and Public Works issued a report urging Congress to limit the authority of the EPA and Corps because it believes that they are overstepping their authority and claiming too broad of a jurisdiction.[9] They are particularly concerned that the federal government will be able to get around exemptions in the CWA by “simply referring to a ‘puddle’ as ‘water’ or ‘wetlands’ or referring to an ‘erosion feature’ as a ‘tributary.’”[10] This would give the federal government more control over farm land and impede on farmers’ rights.[11] Their report concludes that the rule gives the EPA and the Corps too much control to declare areas as WOTUS stating that “the hard-won right to challenge Corps jurisdictional determinations will become meaningless.”[12] The Senate fears that the rule “eviscerate[s]…the statutory exemptions for ordinary farming and ranching activities” and thus, will negatively impact agricultural economy by imposing burdensome regulations on them.[13]

In opening briefs on November 1, 2016, over thirty states agreed with the Senate Report and urged the court to strike down the Clean Water Rule.[14] They believe that the rule infringes on states’ jurisdiction, violating the Tenth Amendment and their sovereign interest[15]. In opening briefs, many industry groups, such as the National Pork Producers Council, the American Forest & Paper Association, and the American Farm Bureau Federation, agreed, adding that the rule is “arbitrary and capricious and inconsistent with the CWA’s text” because it allows government agencies to get around exemptions to the CWA by reclassifying certain waters under different terminology.[16] Overall, opponents to the Clean Water Rule stress that the rule infringes on states’ rights and will negatively affect agriculture by increasing the burden on farmers by substantially increasing waters that must abide by the CWA.

Proponents of the Clean Water Rule

However, many environmental organizations have argued that the Clean Water Rule, in fact, needs to be fortified because it grants too many exemptions. As Waterkeeper Alliance states, “in the Clean Water Rule, the agencies abdicate federal jurisdiction over potentially thousands of acres of wetlands, ponds, ditches and other waters that provide habitat to aquatic and water-dependent species nationwide.”[17]

The Sierra Club, Natural Resources Defense Council, National Wildlife Federation, and three other environmental groups explained in a brief submitted to the court that the rule expands exemptions for “agriculture-related activities.”[18] The groups also find that the rule unlawfully allows certain waters to be classified as outside the scope of the CWA if they are converted into “waste dumps.”[19] By expanding the waters that are not governed by the CWA, environmental groups fear that, not only will local wildlife be negatively impacted, but also the health and safety of citizens.[20]

Analysis

The ruling of the Sixth Circuit will likely not be the end of discussion regarding the Clean Water Rule. As the Senate Report predicts, the issue will likely reach the Supreme Court.[21] With Donald Trump as the president-elect, Obama will likely not be able to push through a Supreme Court Nominee, and with a Republican House and Senate, Trump will be able to appoint a new Supreme Court Justice before this case ever reaches the Supreme Court. Trump has promised to shrink the EPA to use it as more of an advisory role, and he has spoken out against government overreach.[22] Therefore, a Trump appointed Supreme Court Justice will likely result in less federal control over states’ environmental practices in general and the end of the Clean Water Rule in particular.

 


*Anna Rasmussen is a Junior Editor on MJEAL. She can be reached at annaras@umich.edu.

[1] Dep’t of the Army, Corps of Eng’r, Clean Water Rule: Definition of ‘‘Waters of the United States,’’ 80 Fed. Reg. 37054, 37054 (2015), at 1.

[2] Id.

[3] Clean Water Rule Legis. Statement, EPA, https://www.epa.gov/cleanwaterrule/clean-water-rule-litigation-statement.

[4] U.S. S. Comm. on Env’t and Pub. Works, From Preventing Pollution of Navigable and Interstate Waters to Regulating Farm Fields, Puddles and Dry Land: A S. Rep. on the Expansion of Jurisdiction Claimed by the Army Corps of Eng’r and the U.S. Envtl. Prot. Agency under the Clean Water Act (2016), at 11.

[5] Id.

[6] Murray Energy Corp. v. United States DOD (In re United States DOD), 817 F.3d 261 (6th Cir. 2016).

[7] Clean Water Rule, supra note 3.

[8] Stan Parker, “Clean Water Rule Not Strong Enough, Enviros Tell 6th Circ.,” Law 360, at 1.

[9] U.S. S. Comm. on Env’t and Pub. Works, From Preventing Pollution of Navigable and Interstate Waters to Regulating Farm Fields, Puddles and Dry Land: A S. Rep. on the Expansion of Jurisdiction Claimed by the Army Corps of Eng’r and the U.S. Envtl. Prot. Agency under the Clean Water Act (2016), https://www.law360.com/articles/858728/clean-water-rule-not-strong-enough-enviros-tell-6th-circ  at 5.

[10] Id. at 6.

[11] Id. at 7.

[12] Id. at 30.

[13] Id.

[14] Juan Carlos Rodriguez, “States, Industry Tell 6th Circ. Feds’ Water Rule Can’t  Stand,” Law 360, https://www.law360.com/articles/858330/states-industry-tell-6th-circ-feds-water-rule-can-t-stand at 1.

[15] Id.

[16] Id. at 2.

[17] Parker at 1.

[18] Id.

[19] Id. at 1.

[20] Id.

[21] Dep’t of the Army, Corps of Eng’r, at 4.

[22] Schoen, John “Regulation Buster Trump Takes Aim at the EPA,” CNBC, Nov. 10, 2016, http://www.cnbc.com/2016/11/09/regulation-buster-trump-takes-aim-at-the-epa.html.

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