Jurisdictional Waters – Take 3: Action!

by Nathan E. Vassar and Lauren C. Thomas

What’s old is new again for those tracking the latest in the decades-long regulatory wrangling over the definition of “waters of the United States.” To the cheers of some, disdain of others, and confusion for the rest, the U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps”) announced plans to re-write regulatory provisions defining the scope of the Clean Water Act’s definition of jurisdictional waters. As of right now, the re-write is in a pre-proposal phase, as the EPA and the Corps are gathering stakeholder input before outlining a new rule.

For those keeping track, this re-write represents the third draft to define jurisdictional waters in just seven years, spanning three different administrations. By way of context, the most recent jurisdictional rule – the Navigable Waters Protection Rule (“NWPR”) – was established by the Trump Administration, and was premised upon Justice Antonin Scalia’s concurring opinion in the 2005 Rapanos case that focused upon “relatively permanent” waters subject to the jurisdiction of EPA and the Corps. See Rapanos v. United States, 547 U.S. 715 (2006). The NWPR carved out certain ditches and even ephemeral streams from consideration as jurisdictional waters, particularly in more arid parts of the southwest where flows were shown to be limited over time. A federal judge in Arizona vacated the NWPR in August 2021. See Pascua Yaqui Tribe v. EPA, No. CV-20-00266-TUC-RM, 2021 WL 3855977 (D. Ariz. Aug. 30, 2021). As a result, EPA’s re-write will focus on the new meaning, rather than undertaking an administrative repeal.

At this point, it is too soon to predict the direction of the new jurisdictional waters rule, although many anticipate the continued exclusions of critical carve-outs, such as groundwater and waste treatment systems. Based on environmental group push-back on the Trump Administration’s treatment of ephemeral streams, it is almost a guarantee that ephemeral streams will re-enter the jurisdictional fold, and perhaps be subject to a new threshold analysis. Similarly, in light of agricultural and other interests, we do not currently anticipate a return to the Obama Administration’s 2015 “Clean Water Rule,” which provided a measuring-tape approach that included land within certain distances of wetlands and traditional navigable waters. EPA and the Corps will need to consider stakeholder input and decide whether to cherry-pick provisions of the past two rules or to chart a new course entirely with new criteria.

What this means for publicly owned treatment works in Texas and across the United States is that the 1980s EPA/Corps guidance is back in play, along with the overlay of the federal Supreme Court decisions in 2001 (Solid Waste Agency of Northern Cook County) and 2005 (Rapanos), until a new jurisdictional rule is published and eventually adopted. See Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs, 531 U.S. 169 (2001); Rapanos, 547 U.S. 715 (2006). The Texas Pollutant Discharge Elimination System regime is not likely to change at all, given the breadth of the Chapter 26 state jurisdictional coverage, capturing water in the state and areas adjacent to water in the state. However, for projects implicating dredge and fill Clean Water Act Section 404 authorization, mitigation requirements may increase, subject to the new rule, once adopted.

The move comes as Administrator Michael Regan’s EPA is pushing new initiatives for environmental justice, climate resiliency, and other projects, while also repealing certain environmental policies from the Trump Administration. To that effect, on the federal level, EPA also recently rescinded the Maui v. Hawaii Wildlife Fund guidance addressing discharges from the “functional equivalent” of point sources, pursuant to the 2020 U.S. Supreme Court ruling that required a federal discharge permit for deep-well injected wastewater in Maui County, Hawaii that migrated underground to the Pacific Ocean. As EPA and the Corps proceed with this initiative and others impacting permittees and the regulated community, we will continue to provide updates and analysis as federal decisions impact entities, water/reuse/wastewater projects, and individuals in Texas.

Nathan Vassar is a Principal in the Firm’s Water Practice Group. Nathan assists communities and utilities with environmental permitting and enforcement matters with both state and federal regulators, with a focus on water quality-related enforcement. Lauren Thomas is an Associate in the Firm’s Water Practice Group. Lauren assists clients with water quality matters, water resources development, regulatory compliance, permitting, enforcement, and litigation. If you would like additional information or have questions related to these or other matters, please contact Nathan at 512.322.5867 or nvassar@lglawfirm.com, or Lauren at 512.322.5850 or lthomas@lglawfirm.com.