The tides of the Clean Water Act changed dramatically throughout Earth Week 2020. On the eve of Earth Day, President Trump’s EPA finalized its multi-phase assault on the Clean Water Act (“Act” or “CWA”) by gutting the Act’s jurisdictional reach and severely endangering the health of the nation’s waters. On the 50th annual Earth Day, global celebrations took to the internet as the world continued its fight against the COVID-19 pandemic. Many had reason for despair, but environmental champions like Jane Goodall called for continued hope. Just one day later, hope came from the Supreme Court.
On April 23, 2020, the Supreme Court dealt a significant blow to the EPA’s assault on the CWA. The Court, in a 6-3 decision, confirmed that the Clean Water Act’s jurisdiction extends to certain discharges to groundwater that are the “functional equivalent of a direct discharge” from a point source to a navigable water. The decision overturns a significant portion of the EPA’s 2019, self-serving interpretation of the Act’s jurisdictional reach and severely undermines the EPA’s recently revised definition of the “waters of the United States” (“WOTUS”).
President Trump’s EPA Attacks the Clean Water Act
The jurisdictional reach of the Clean Water Act depends on the statutory and regulatory definition of WOTUS. Under President Trump’s administration, the EPA and the Army Corps of Engineers (“Corps”) (together “Agencies”) launched an attack on the jurisdictional reach of the Act under the guise of trying to “increase [CWA] program predictability and consistency by increasing clarity as to the scope of ‘waters of the United States.’”[1] The Agencies embarked on a two-step process to accomplish this goal, which culminated with a final rule redefining the waters of the United States on April 21, 2020.
Step One: Repealing the Clean Water Rule
Historically, the EPA defined waters of the United States to include navigable rivers, lakes, bays, and coastal waters, and their tributaries and adjacent wetlands, as well as “[a]ll other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce.”[2] Two Supreme Court decisions issued in the early 2000s created uncertainty over how the Agencies would interpret and apply this definition.[3] Under President Obama’s administration, the Agencies issued the Clean Water Rule in an effort to clarify this uncertainty.
At the time the Agencies promulgated the Clean Water Rule, the EPA and the Corps emphasized that the new definition only covered waters that were historically covered by the CWA and that the Rule “does not interfere with or change private property rights, or address land use[,] does not regulate most ditches or regulate groundwater, shallow subsurface flows or tile drains[,] does not change policy on irrigation or water transfers[, and] does not apply to rills, gullies, or erosional features.”[4] Rather, the goal of the Clean Water Rule was to maintain jurisdiction over navigable rivers, lakes, bays, and coastal waters while clearly defining and protecting tributaries, streams, and wetlands that impact downstream water quality as well as certain, defined water features that also impact downstream waters. These include prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands when they impact downstream waters.[5]
The Agencies under President Trump’s administration, however, completely changed course and have worked to undo the Clean Water Rule and severely restrict the historic jurisdictional reach of the Clean Water Act. On September 12, 2019, the Agencies completed the first step of this process when they announced a final rule that repealed the Clean Water Rule.
Step Two: Redefining Waters of the United States
Once the Agencies repealed the Clean Water Rule, they set to work to redefine “waters of the United States” – the second step in the administration’s plan to roll back the jurisdictional limits of the Clean Water Act. The definition retains navigable rivers, lakes, bays, and coastal waters.[6] Significantly, however, the rule alters the definition of adjacent wetlands to those “that abut or have a direct hydrological surface connection to [those navigable waters].”[7] The rule also excludes ephemeral streams, upland ditches, ephemeral ditches, and groundwater.[8] This rule removes a number of waters from the federal EPA’s and Corps’ protection under the CWA and, depending on the applicable state regulations, would allow the development of and discharge to such waters without the need for any permit.
The Supreme Court Upholds the Historical Definition of Waters of the United States
Case History
In 2012, environmental groups brought a citizen suit under the Clean Water Act against the County of Maui. The County’s wastewater reclamation facility discharges treated municipal water to four wells located hundreds of feet underground. The wastewater then travels approximately a half mile, via groundwater, to the Pacific Ocean. The environmental groups claimed the County’s process constituted a discharge of a pollutant to navigable waters without a permit in violation of the Clean Water Act. The District Court granted summary judgment for the environmental groups “because the ‘path to the ocean is clearly ascertainable,’ the discharge from Maui’s wells into the nearby groundwater was ‘functionally one into navigable water.”[9] On appeal, the Ninth Circuit affirmed the District Court but expanded the reach of the Act’s jurisdiction to require a permit “when ‘the pollutants are fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water.’”[10]
The Supreme Court’s Decision
On February 9, 2019, the Supreme Court granted the County’s Petition for Writ of Certiorari on the limited question of “[w]hether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.”[11] The Court granted the petition “[i]n light of the differences in the standards adopted by the different Courts of Appeals.”[12] On April 12, 2019, the EPA issued an Interpretive Statement concluding “that the Act is best read as excluding all releases of pollutants from a point source to groundwater from NPDES program coverage and liability under Section 301 of the CWA, regardless of a hydrologic connection between the groundwater and a jurisdictional surface water.”[13] The Interpretive Statement amounted to a thinly veiled attempt to skirt notice and comment rulemaking to amend the definition of waters of the United States in light of the Supreme Court’s grant of the County of Maui’s petition.
On April 23, 2020, the Supreme Court struck down the EPA’s interpretation and held that “the statute requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge.”[14] In doing so, the Court stated that, “to follow EPA’s reading would open a loophole allowing easy evasion of the statutory provision’s basic purposes.”[15] The Court stated that the positions of the County and the Solicitor General “have consequences that are inconsistent with major congressional objectives, as revealed by the statute’s language, structure, and purposes.”[16] Consequently, the Court found that the Act’s permit requirements apply “to a discharge (from a point source) of pollutants that reach navigable waters after traveling through groundwater if that discharge is the functional equivalent of a direct discharge from the point source into navigable waters.”[17]
So Now What?
The final rule redefining the definition of WOTUS is in effect. The Supreme Court’s decision, however, lays the foundation for a myriad of legal challenges. Environmental groups will rightfully challenge the new definition for many of the reasons discussed in the Supreme Court’s decision in the County of Maui. That challenge will, however, take time. While the legal challenges to the new rule are pending, the EPA will likely not require permits for groundwater discharges, putting groundwater and downgradient surface water at risk of being contaminated. This will negatively impact drinking water supplies, irrigation sources, fishing, and recreational activities.
Impacted communities, farmers, fishers, and outdoorspeople are not powerless to stand up to the destruction of their water sources. Legal challenges can be brought to enjoin polluters from discharging pollutants into groundwater sources and to recover damages resulting from necessary cleanup activities and losses of natural resources.
[1] 84 Fed. Reg. 4,154 (Feb. 14, 2019).
[2] 45 Fed. Reg. 85,336. The Army Corps of Engineers promulgated a nearly identical definition for the dredge and fill provisions of the Clean Water Act. See 47 Fed. Reg. 31,794.
[3] Solid Waste Agency v. United States Army Corps of Eng’rs, 531 U.S. 159 (2001); Rapanos v. United States, 547 U.S. 715 (2006).
[4] Envtl. Prot. Agency, Factsheet: Clean Water Rule (2015), available at https://archive.epa.gov/epa/sites/production/files/2015-05/documents/fact_sheet_summary_final_1.pdf
[5] 80 Fed. Reg. 37,054 (June 29, 2015); 40 C.F.R. § 230.3.
[6] 84 Fed. Reg. at 4,203-04.
[7] 84 Fed. Reg. at 4,204.
[8] Id.
[9] Cty. of Maui v. Hawaii Wildlife Fund, et al., 590 U.S. ___, p. 3. (Apr. 23, 2020)
[10] Id.
[11] Cty. Of Maui v. Hawai’I Wildlife Fund, 886 F. 3d 737 (9th Cir. 2018), cert. granted, 87 U.S.L.W. 3079 (U.S. Feb. 19, 2019) (No. 18-260).
[12] Cty. Of Maui, 590 U.S. ___ at p. 4.
[13] 84 Fed. Reg. 16,810 at 16,811.
[14] Cty. Of Maui, 590 U.S. ___ at p. 15.
[15] Id. at 12.
[16] Id. at 18.
[17] Id.
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