By Joshua A. Bloom
Just when we thought the jurisdictional and regulatory issues concerning the federal Clean Water Act and the resulting implications could not get more complicated, recent developments have put that possibility to rest. In the past few months, the Trump Administration EPA’s efforts to shelve the Obama-era Waters of the United States Rule (“WOTUS”) were thrashed in South Carolina federal district court; the Ninth and Fourth Circuits held that groundwaters that hydrologically connect discharge of polluted waters to navigable waters — a “groundwater conduit” — are subject to the Clean Water Act; and EPA has put out a formal “request for comment,” asking whether such discharges should be subject to Clean Water Act regulation.
With all of this swirling about, how states and the regulated community sort out their day-to-day business relating to water pollution regulation has not been an easy task.
The scope of what encompasses “waters of United States,” which in turn defines the scope of federal authority under the Clean Water Act (CWA), has long been the subject of controversy, regulation, and a series of Supreme Court rulings. The definition had long stood under a joint EPA and Army Corps of Engineers regulation that provided the agencies’ take on what are “waters of the United States” under the Act. However, after the Supreme Court in 2006 continued its contraction of the EPA’s and the Corps’ Clean Water Act authority in Rapanos v. United States, in which an ideologically fragmented 4-4-1 plurality decision authored by Justice Antonin Scalia took a very narrow view of the breadth of the CWA and the dissent argued for broad jurisdiction, most courts have looked to Justice Anthony Kennedy's middling, concurring opinion establishing that non-navigable-in-fact waters could be regulated if there was a "significant nexus" between those waters and a traditionally navigable waterway. EPA and the Corps used that “significant nexus” concept as the basis to revise the regulatory definition of “waters of the United States” in the 2015 WOTUS Rule.
As expected, litigation ensued, with many industry groups and states arguing that the 2015 WOTUS Rule impermissibly expanded federal authority. The Sixth Circuit then issued a nationwide stay of the Rule pending resolution of the substantive issues, and more litigation over associated disputes followed. On top of that, barely a month into his tenure, President Trump in February 2017 issued an executive order, in which he described WOTUS as "one of the worst examples of federal regulation," and instructed the agencies to interpret the term "navigable waters" in a manner "consistent with the opinion of the late Justice Antonin Scalia in Rapanos v. United States... .” What followed was EPA’s promulgation of a rule, short on providing much of a basis, summarily suspending the WOTUS Rule pending further regulation and resolution of the various court cases (the “Suspension Rule”). And, in the midst of all that, the Supreme Court ruled that district courts, not circuit courts, had jurisdiction to hear the challenges to the WOTUS Rule, thereby lifting the Sixth Circuit’s stay. However, the 2015 WOTUS Rule could not be implemented because of the Suspension Rule.
That circular dynamic ended in August 2108, when the South Carolina District Court, in South Carolina Conservation League v. Pruitt, issued a nationwide injunction striking down the Suspension Rule. As is the case with many efforts of the Trump Administration to rush through repeal or replacement of Obama-era regulations, courts have tended to reject those slapdash efforts. In a pointed opinion in South Carolina Conservation League, and without delving into the merits of the WOTUS Rule, the district court held that the Suspension Rule was arbitrary and capricious. The court found that EPA and the Corps refused to consider comments on the Rule’s substance and merits, refused to engage in substantive reevaluation of the “waters of the United States” definition (which would revert to the definition in the regulation that was in place prior to the 2015 WOTUS Rule), and, ultimately, that the Administrative Procedures Act “requires that the pivot from one administration’s priorities to those of the next be accomplished with at least some fidelity to law and legal process…[t]he agencies failed to promulgate the Suspension Rule with that required fidelity here. The court cannot countenance such a state of affairs.”
As a result of the court’s ruling, the WOTUS Rule, for now, is the regulation applicable to defining “waters of the United States.” EPA and the Corps will likely take another stab at “rescind and replace,” presumably with better fidelity to proper rulemaking procedures. Whether the agencies can justify contracting the definition of “waters of the United States” through that process, and survive court challenge, remains to be seen.
The Groundwater Conduit
It has long been a tenet of the Clean Water Act that only discharges to surface waters, and not groundwaters, are subject to federal jurisdiction, thus excluding groundwaters from the definition of “waters of the United States.” This varies from regulation in California under the Porter-Cologne Water Quality Act, in which “waters of the state” include “any groundwater within the boundaries of the state.” In other words, discharges of pollutants to groundwaters could be subject to state regulation and enforcement, but not federal regulation.
However, two recent federal circuit court cases have held that discharges to groundwaters that have a hydrological connection to surface waters, where those groundwaters provide a conduit for contaminants that are discharged to reach surface waters, can be subject to the Act. Both the Ninth Circuit, in Hawai’i Wildlife Fund v. County of Maui, and the Fourth Circuit, in Upstate Forever v. Kinder Morgan Energy Partners, held that to come within the scope of federal regulation, the Clean Water Act does not require that pollutants be discharged directly to navigable surface waters. Instead, it is enough that if pollutants are fairly traceable from the point source of discharge to the navigable water, and those pollutants are present in the navigable water at levels more than de minimis, then that is the functional equivalent of a discharge to the surface water.
On the heels of the Hawai’i Wildlife Fund v. County of Maui decision, EPA published its “request for comment” on the groundwater conduit issue. That “request” has thus far generated nearly 60,000 comments, and whatever EPA decides to do, controversy and litigation is almost sure to follow.
What Does All Of This Mean For California?
The reinstatement of the 2015 WOTUS Rule will affect California industries, agricultural interests, and others, in that the breadth of federal authority, at least for the time being, is arguably broader than under the prior regulation, and in any event requires assessment specific to the 2015 WOTUS Rule to determine whether a water feature is a “water of the United States.” However, EPA and the Corps (and the Department of Justice) will also continue to exercise enforcement discretion, meaning that it remains a question whether there will be broader federal regulation of the Clean Water Act for the period that the 2015 WOTUS Rule remains in effect. The Trump Administration will almost certainly take another stab at reversing or revising that Rule, but it would be fools’ errand to guess how that will end.
As for discharges to groundwaters, California already regulates those discharges under state law. But with the two recent circuit court decisions countenancing the “groundwater conduit” theory, enforcement of those discharges to groundwaters may be subject to federal enforcement as well (and subject to the same enforcement discretion noted above). EPA’s response to its “request for comments” will inform how this will play out ultimately, but for now, prudence would counsel assessing whether there is a hydrologic “conduit” through a groundwater, between the discharge and a surface water.
Joshua A. Bloom is a Principal at Meyers Nave in the firm’s Land Use and Environmental Law Practice Groups. With more than 25 years of experience, he specializes in all areas of state and federal environmental and natural resources law, including complex environmental litigation, brownfields, environmental aspects of transactional matters, and compliance counseling, representing both public and private clients. (firstname.lastname@example.org, 800.464.3559