From Annapolis to Des Moines, Water Quality Remains the Focus This Summer
It’s been a wet summer in many places around the country. But much of the attention on water has not stemmed from the heavy rains. Rather, the focus this summer continues to be on water quality.
In previous months, we’ve detailed the Des Moines Water Works lawsuit and the substance of the new Clean Water Rule (Rule) finalized by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) on May 27, 2015. This month, we’ll review the flurry of litigation arising upon the Rule’s publication June 29. We’ll also review a related water quality decision issued by the Third Circuit Court of Appeals on July 9. Although these cases remain distinct, they raise common questions regarding states’ rights, agency authority, and land use regulation. Water quality remains at the forefront, and we’ve likely seen only the beginning of many court battles to come.
Clean Water Rule Litigation
Most are familiar with the well-publicized opposition to the Rule waged by industry groups like the American Farm Bureau and the National Association of Home Builders. Farm Bureau’s “Ditch the Rule” and the EPA’s counterpoint “Ditch the Myth” remain ubiquitous social media slogans. And, in fact, industry groups filed their own federal complaint alleging that the Rule is invalid on July 2. What may be less familiar to readers is that the majority of states also contend that the Rule is invalid. This opposition—rooted in concerns over states’ rights and the Constitution—will take center stage in coming months in five lawsuits originating in Texas, Georgia, Ohio, North Dakota, and Oklahoma. Additional lawsuits could follow.
The five complaints, while each different, echo similar claims. To understand the claims, it is important to understand the framework of the Clean Water Act (CWA). The CWA, enacted in 1972, granted authority to the EPA and the Corps to regulate the discharge of certain materials into “navigable waters.” “Navigable water” is defined by the CWA as “water of the United States.” It is for the agencies to more specifically define that phrase. The Clean Water Rule (formerly called “Waters of the United States” or WOTUS) is the agencies’ latest attempt to clarify the boundaries of this phrase.
The definition is crucial because only those waters falling within the parameters of the definition are subject to CWA jurisdiction. Under the CWA, persons seeking to discharge pollutants into the “waters of the United States” must first obtain a permit from a state or the EPA. Likewise, persons discharging dredged or fill material into the “waters of the United States” must obtain a permit from a state or the Corps. Discharging substances into jurisdictional waters without a permit can lead to extensive civil penalties, including fines up to $37,500 per day per violation, in addition to criminal penalties. But seeking a permit can be a costly, burdensome process as well. In other words, determining whether a particular wetland, water body, or ditch is jurisdictional is a very big deal. And much of that burden falls on the states. Under the CWA, states are generally the primary administrators of the permitting process for pollutants and are authorized to assume responsibility for the dredge and fill permitting process as well.
In passing the CWA, Congress acknowledged that the states retained the primary responsibility and right to prevent, reduce, and eliminate pollution of their water resources. Nonetheless, most of the states believe that the new Clean Water Rule strips them of much of that authority by granting the federal agencies jurisdiction over “extremely wide swaths of intrastate waters and lands.” This, they allege, violates the states’ rights under the United States Constitution, which, in the Tenth Amendment, reserves all powers not delegated to the federal government, to the states.
Specifically, the states allege they are harmed because the Rule expands the number of waters subject to federal jurisdiction, erodes states’ authority over their own waters, increases the burdens on the states to administer federal water quality programs, and undermines state sovereignty.
For their part, the agencies’ economic analysis of the Rule states that the Rule will increase federal jurisdiction over waters throughout the country by 2.84 to 4.65 percent. The states point out that contrary to this finding, the preamble to the Rule contends that “The scope of jurisdiction in this rule is narrower than that under the existing regulation.” The states contend that this “jurisdictional uncertainty” will impose significant harm to the states.
Of particular concern to the states (as well as many farming and industry groups) are the definitions in the Rule for “tributaries” and “adjacent waters.” The states are concerned that “a water is defined as a ‘tributary’ even if it has man-made or natural breaks, so long as a bed and banks and an ordinary high water mark can be identified upstream of the break.” This definition, they allege, “sweeps within the agencies’ authority” ephemeral streams and channels that are usually dry.” This concern stems from the fact that the meaning of “Bed and Banks and Ordinary High Water Mark” is uncertain. It also appears that the determination of such features could be made through computer software without any actual physical inspection.
Likewise, the federal complaints assert concerns over the definition of “adjacent waters,” which includes all waters “bordering,” “contiguous” to, or “neighboring” “primary waters, impoundments, or tributaries.” The final rule introduced a new definition of “neighboring” that arguably grants per se jurisdiction to a “large variety of waters within floodplains, including lands that are dry most of the year.” This is because the definition of “neighboring” includes certain “waters” based strictly on their proximity to other jurisdictional waters, including tributaries. For example, the definition includes as a per se jurisdictional neighboring water “waters located within 100 feet of the ordinary high water mark of navigable waters, interstate waters, territorial seas, impoundments, or tributaries.” Given the potentially indirect relation of a tributary to traditional navigable waters, the definition of “neighboring” would seem to strain this connection even more.
The states also allege that the agencies violated the rulemaking process by finalizing a rule that was not a “logical outgrowth” of the proposed rule. They allege that because the final Rule introduced a definition for “neighboring” that was not in the proposed rule, they were denied a meaningful opportunity to comment on the final Rule.
Also of concern for the states is the category of waters that will be jurisdictional under the Rule only after a “case-by-case” analysis. With respect to the broad definition of waters subject to such a test, the states contend, “The Federal Agencies admit that the Final Rule will expose more than ‘the vast majority of the nation’s water features’ to the possibility of CWA jurisdiction.”
Although the complaints seek multiple forms of relief, they generally ask the courts to declare that the Rule is unlawful because it (1) exceeds the agencies’ statutory authority under the CWA, (2) it violates the United States Constitution and other federal law, (3) and it constitutes an arbitrary and capricious “abuse of discretion.” Specifically, the states ask the court to vacate the Rule and prevent its enforcement
The Rule is scheduled to become effective August 28, 2015. It remains to be seen whether a federal court will stop enforcement of the Rule prior to its effective date.
Chesapeake Bay Litigation
Days after the states filed their complaints, the United States Court of Appeals for the Third Circuit decided a case where industry groups challenged the EPA’s authority to regulate pollution impacting the Chesapeake Bay region.[i] Although the Bay is a distinct body of water plagued with its own unique challenges, the themes raised by the lawsuit are similar to those raised in the recent Clean Water Rule lawsuits. In American Farm Bureau v. EPA, the plaintiffs argued that the EPA had exceeded its authority when it drafted the “Chesapeake Bay TMDL,” a blueprint of sorts for improving water quality in the Chesapeake Bay. The Third Circuit disagreed, ruling on July 9—as the District Court had—that the EPA had reasonably executed its authority under the CWA in administering the new plan.
At the core of the lawsuit is the CWA directive for the development of a “total maximum daily load” or TMDL of pollution for certain waters. The definition of that phrase and the corresponding authority granted to the EPA by that phrase is at the center of the Chesapeake Bay controversy.
The CWA provides that the states are to set the TMDL and the EPA is to approve or disapprove it. If the EPA disapproves it, it must create the TMDL itself. This is referred to as a “backstop” measure. Given the complex issues surrounding the pollution in the Chesapeake Bay, the states in the Chesapeake watershed agreed that the EPA would set the TMDL initially for the entire watershed. As part of its TMDL, the EPA included (1) permissible levels of nitrogen, phosphorus, and sediment among different kinds of sources of these pollutants, (2) target dates for reducing discharges to the level the TMDL envisions, and (3) assurance from the seven affected states that they would fulfill the TMDL objectives.
The plaintiffs argued that in issuing the TMDL, the EPA should only have issued a numeric value, not a vast implementation plan. Of particular concern to the plaintiffs was the fact that the TMDL includes allocations between point and nonpoint sources. This, the plaintiffs argued, constitutes a direct usurpation of state authority by the EPA. While the CWA grants the EPA ultimate control over point source pollution (that being emitted from a discrete source like a pipe), states retain jurisdiction under the CWA to regulate nonpoint sources. The lawsuit alleged that the EPA’s TMDL intrudes upon land use, an area of state jurisdiction. Consequently, the plaintiffs argued that the plan violates the CWA and raises serious constitutional federalism concerns.
In its opinion, the Third Circuit affirmed summary judgment for the EPA. Specifically, the court analyzed the EPA’s actions under the Chevron[ii] framework and determined that the agency had not exceeded its authority. The court ruled that the phrase “total maximum daily load” in the CWA was ambiguous and that Congress had left it to the EPA to fill in the gaps. The court then ruled that the EPA’s attempt to interpret the phrase was a “reasonable policy choice.” In making this determination the court relied on the fact that the TMDL did not prescribe any means of pollution reduction to any individual point or nonpoint source. Rather, the court found that it merely contained pollution limits and allocations to be used as an information tool in connection with the states’ efforts to regulate water pollution. Thus, the court found that the EPA’s approach “made sense” and allowed a reasoned coordination among all the competing possible uses of the resources affecting the Bay.
Although the court in Chesapeake Bay case directly acknowledged that this case is a victory for “environmental groups, the states that border the Bay, tourists, fishermen, municipal water treatment works, and urban centers," it is unclear what impact it will have on other water quality legislation. Although the EPA’s actions in this case were deemed reasonable, they were actions that had been blessed by the impacted states and that were focused on addressing a distinct water quality issue. The Clean Water Rule litigation, as detailed earlier in this article, is wholly different. The technical definition of “waters of the United States” has a much broader impact on states’ rights than the technical definition of TMDL in the Chesapeake Bay case.
We will keep you informed as pending litigation works its way through the court system. We are also following related legislative activities. In May, the House voted 261-155 to force agencies to withdraw the Clean Water Rule and start over.[iii] Similar legislation is pending in the Senate.[iv]
On another note, the court in the Des Moines Water Works lawsuit recently issued a scheduling order setting a bench trial date of 8/8/2016. It is very possible, however, that the case could be decided on summary judgment, without ever reaching trial.
As always, we will keep you posted.
[i] Am. Farm Bureau Fed'n v. United States EPA, 2015 U.S. App. LEXIS 11548 (3d Cir. Pa. July 6, 2015).
[ii] Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
[iii] H.R. 1732, the Regulatory Integrity Protection Act of 2015.
[iv] Senate Bill 1140, the Federal Water Quality Protection Act.
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