Clean Water Act

District Court Vacates Trump Administration "Waters" Rule, So What's Next for WOTUS?

The Army Corps and EPA were happy to have the Trump Administration rule remanded, as they are working on a more expansive replacement that will itself face legal challenge.


Yesterday a federal district court judge in Arizona vacated and remanded the Trump Administration's "Navigable Waters Protection Rule" (NWPR) which adopted a somewhat narrow definition of "waters of the United States" (WOTUS) under the the Clean Water Act (CWA). This definition is important because it determines the scope of federal regulatory authority under the CWA, including what wetlands are subject to CWA permitting requirements as part of the "waters of the United States."

The decision by Judge Rosemary Marquez in Pasqua Yaqui Tribe v. U.S. Environmental Protection Agency is merely the latest judicial decision in a decades-long fight over the scope of CWA regulatory jurisdiction. These fights date back to the 1980s, when the U.S. Army Corps of Engineers and Environmental Protection Agency first adopted expansive interpretations of their regulatory authority under the CWA. In the 2000s the agencies suffered two major losses in the Supreme Court (SWANCC and Rapanos), but failed to trim their regulatory ambitions.

The Obama Administration adopted an expansive WOTUS rule in 2015, and it too faced judicial skepticism, but was withdrawn by the Trump Administration in 2019 before reaching the Supreme Court on the merits. The NWPR was adopted in April 2020, and has now been vacated before it was even two years old.

Judge Marquez was aided in her conclusion that the NWPR by the agencies' acquiescence to many of the plaintiffs' arguments. Given the switch in adminstrations, the agencies conceded "substantial concerns about certain aspects of the NWPR . . . including whether the NWPR adequately considered the CWA's statutory objective" and "the effects of the NWPR on the integrity of the nation's waters." Such errors, Judge Marquez concluded, were fundamental, substantive flaws" in the rulemaking that required vacatur.

Left unaddressed in the opinion is the fact that such concerns were decisively rejected by Justice Kennedy in his controlling Rapanos opinion. Waters and wetlands must have "significant nexus" to "navigable waters" to fall within the CWA's ambit, Justice Kennedy explained, cautioning that "environmental concerns provide no reason to disregard the limits in the statutory text." The Trump NWPR, despite its flaws (which I discussed here), was the first Army Corps and EPA rule to take such limits seriously in over thirty years.

An obvious question is what rule controls CWA jurisdiction now that the NWPR has been vacated. Judge Marquez has asked for further briefing on whether to vacate the 2019 repeal of the Obama WOTUS rule as well. If the WOTUS rule is not reinstated, the Army Corps and EPA would have to resort to the pre-2015 regulations that the Supreme Court found overly expansive in SWANCC and Rapanos (and which, as written, almost certainly exceed the scope of the Commerce Power). This would hardly promote regulatory certainty.

As I noted last week in discussing the latest developments in the Sackett case, whether a given water or wetland satisfies those regulations cannot determine whether it is subject to federal regulation because those regulations exceed the scope of the CWA (and likely exceed the scope of Congress' enumerated powers as well). This would suggest the agencies are better off making case-by-case determinations as to whether a given parcel is part of the "waters of the United States," but that is a far more time and labor-intensive process than applying regulatory standards.

Another question is what happens to all of the jurisdictional determinations that were made under the now-vacated rule. One might think that, insofar as the NWPR was arbitrary and capricious, agency determinations that given projects or parcels were not subject to federal regulation would be vulnerable. But not so fast. The agencies have committed to respecting prior jurisdictional determinations for five years once issued.

In addition, under Regents (the DACA decision), those who received favorable jurisdictional determinations would seem to have substantial reliance interests that the agencies would have to consider before seeking to reverse course. As in Regents, the fact that the agency action relied upon may have been arbitrary or unlawful does not matter. Thus I am inclined to think the agencies will respect those jurisdictional determinations issued under the prior rule.

The big question going forward will be how aggressive the Biden Administration chooses to be when it issues a new WOTUS rule of its own. A rule that pushes the boundaries of the Rapanos decision (as the Obama WOTUS rule did) is almost certain to be struck down. An aggressive regulatory strategy could even provoke the sort of harder edged constitutional ruling that the Army Corps and EPA previously avoided. Yet given these agencies' regulatory histories, I doubt they will take a cautious course.

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  1. I suspect given the intervening changes in the Court’s make-up that these agencies are going to have an even harder time going forward.

  2. It’s all rather ironic given that the EPA has done considerable damage to navigable waters. One example specifically the 2015 mine spill dumping toxic waste into the Animas river and watershed in Colorado and downstream. That was caused by the EPA entirely. There are others of course. But they use this to prosecute land owners and others who cannot fight back in court successfully. The courts are trending away from abusive federal government actions though.

  3. So, the judge’s ruling “against” the EPA expands the powers of the EPA.

    Thank goodness we have a judiciary to reign in an overzealous executive branch.

  4. I’m a bit baffled by this entire situation.

    The Trump administration went through a full notice and comment period to define the Waters of the United States, as is appropriate under the Administrative Procedures Act. This took about 2 years. And resulted in a ruling that gave the EPA less power to intrude on people.

    Now, the Biden Administration could change the definition. They’d just need to go through the same notice and comment period.

    But instead, somehow, a random Native American group can sue the EPA about a rule that grants the EPA less power, to overturn the rule. Not sure what the standing there is there. (But I am interested in who is paying the legal bills). And we get an administration change, so the EPA now says…”uh we give up..yup”. And the judge’s logic is, rather than any error in the APA or overreach by the EPA, or actual damages, it’s her opinion on “potential significant environmental harms” that lead her to overturn the rule….

    Listen, Congress makes the laws. If Congress wants to define these things they can, and should. If they leave it up to the EPA to do so, then the EPA can do it through the APA.

    But at this point, the judge is using her personal feelings on the environment to short circuit the rest of the government and the proper way to do things.

    1. “Sue and settle” is back. Didn’t you expect that? Trump had banned it, but the Biden administration quietly resumed the practice.

      1. Judge Marquez was aided in her conclusion that the NWPR by the agencies’ acquiescence to many of the plaintiffs’ arguments. Given the switch in adminstrations, the agencies conceded “substantial concerns about certain aspects of the NWPR . . . including whether the NWPR adequately considered the CWA’s statutory objective” and “the effects of the NWPR on the integrity of the nation’s waters.” Such errors, Judge Marquez concluded, were fundamental, substantive flaws” in the rulemaking that required vacatur.

        I am shocked, shocked, that Judge Marquez declined to appoint an amicus to argue for the points that the agencies conceded.

  5. I doubt the 1972 Congress intended to extend federal jurisdiction to the kind of intermittent streams that were covered by WOTUS. The proper thing to do was to provide Congress with the “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence” (“Connectivity Report”) and have Congress determine if the new information warranted amending the CWA instead of issuing WOTUS. I think the Trump NWPR was closer to Congressional intent.

    1. Avoiding democracy is a feature of those who scream “democracy!”

    2. I think the Trump NWPR was closer to Congressional intent.

      Because a prescient 1972 congress anticipated and agreed with Trumpism?

      1. No, because he’d returned to something closer to Congressional intent after decades of executive branch usurpation of power.

  6. I wonder how many people realize how extreme the interpretation and enforcement of the rules are. Seriously, I’ve experienced it. If a dry creek bed has had an inch or two of water in it within someone’s memory, then it’s a navigable water. It’s among the stupidest things I’ve ever seen.

    1. And that’s just the mechanics of it.

      The purpose of “navigable waters” power is to keep the trade routes open for navigation. In practice it is being used for the exact opposite, to harm trade.

      Blocking trade is the reason politicians go into power worldwide and throughout history, so they can get paid to unblock it.

      1. Similar to the way the federal government was given authority to regulate interstate and foreign trade, to foreclose state regulation of it, not with the intent that it be micromanaged by the government.

  7. Talk about a pissing contest.

    1. Hey, whoa, if that urine is running across the ground, it might be a navigable body of water! Be careful, or you might be in trouble for polluting it.

  8. So one possible response is for the Biden Administration to try to make a rule that respects Americans and tries to accommodate the concerns of the people impacted by the rules.

    Who thinks they will do that?

    No one. That’s who. No one thinks they will.

    1. The vast majority of political work parallels nasty corruption in other countries — getting in the way of trade to get paid to get back out of the way.

      Donations, “donations”, stock portfolios that mysteriously go up at rates nobody else’s do, and many other classic examples.

      Write a book? Companies will buy thousands of copies for no reason. Put kid in charge of a charity you create for well into 6 figures. Rent out a room for that charity for $5k per month. Have stock trade firm write your name down on the profitable IPOs at the end of the trading day.

      It’s all good, man!

  9. What? This is stupid. This is textbook implementing policy preferences into law. Like this regulation passed through the notice and comment a random judge cannot say, oh but I dont like it, and get rid of it.

    “whether to vacate the 2019 repeal of the Obama WOTUS rule as well.”

    What does that even mean? Judges enjoin the enforcement of things, how does one enjoin the enforcement of a repeal?

    1. It’s textbook Sue and Settle. You arrange for somebody to sue the agency demanding that it do something. The agency deliberately loses the lawsuit, and the judge issues an injunction ‘forcing’ the agency to do what it had wanted to do, but wasn’t otherwise legally entitled to.

      Injunctions bypass notice and comment, you see, and even the legislative process. Apparently a government agency can do basically anything, if they can just find a judge to issue an injunction ordering them to do it.

      Best part is that the ruling can also require the agency to pay the suing entity money, too, so that you can divert public funds to your favored organizations by this route, too.

      1. There’s seemingly no scheme they won’t engage in to make Americans’ lives worse.

    2. Biden’s Activist Recruits Raise Risk of Sue and Settle Collusion

      “Here’s how the “sue and settle” game works, for those unfamiliar with it.

      A federal agency and its special-interest group allies want to implement a rule, but are stymied by the administrative process, lack of funding, or some such bother. The special-interest group, probably run by a friend of an agency decision-maker, sues the agency.

      The agency and special-interest group enter into settlement discussions — think proverbial smoke-filled backroom where real power resides. There is no public notice of the discussions and no dissenting viewpoints providing alternative considerations.

      Unsurprisingly, the agency and special-interest group reach a settlement — the agency will do what it wanted in the first place, possibly more. The parties present their settlement for court approval, invoking the force of sanctions if the agency fails to uphold its “bargain.” The agency then cuts a taxpayer-funded check to pay the special-interest group for bringing the suit in the first place.

      Now that is a sweet deal, and it is classic collusion. It is fraud on the court, which only has power to resolve actual cases or controversies; and it is fraud on the American public, which has an interest in transparent, well-informed rulemaking.”

      The EPA was notorious for using this technique to bypass notice and comment, and gain the power to do things they’d no legal authority to do. Sometimes the agency would use it to tie the hands of an administration that didn’t want them doing something.

      1. After I see, “Here’s how the “sue and settle” game works, for those unfamiliar with it,” I expect what follows will be a detailed explanation based on facts you can point to. No luck this time.

      2. The Flores settlement is the most egregious example of this.

  10. Justice Kennedy explained, cautioning that “environmental concerns provide no reason to disregard the limits in the statutory text.”

    I am not a lawyer. Can anyone fill me in on Kennedy’s interpretation of the limits in the statutory text? Is there something there which says, “Environmental issues don’t count?” What exactly did Kennedy say?

    Following this stuff through the years (but only on the basis of news reports, and my own research doing news reporting) I got the impression that environmental issues were part and parcel—in fact, the principal reason for passage of the CWA in the first place. I remember clearly that the context for passage of the CWA included alarm over massive destruction of wildlife habitat by developers filling wetlands.

    Also, “significant nexus?” Unless that is meant to mean the water regulated must itself be navigable, can anyone explain what it does mean? Is there power to regulate waters which create inflows to navigable waters, and which collectively affect their water quality, and/or affect the wildlife in the navigable waters? If not, why not?

    Did the Court say doing that would be unconstitutional? Is the idea that to preserve wetlands adjacent to navigable waters, for the sake of protecting environmental values such as wildlife habitat, is an unconstitutional taking of private property? If so, can anyone explain why destruction of wildlife habitat is a constitutionally protected activity? Why wouldn’t it be constitutional to say, “If you buy a wetland at wetland prices, you get to keep the wetland as a wetland, and government can’t take it away from you except for a public purpose, and to do that government must pay you a wetland price for it?”

    So what is the TLDR here? Is it an assertion there is a constitutional right to fill wetlands to do real estate developments?

    1. The argument is straightforward. The Constitution gives Congress no direct authority to regulate the environment. It can regulate discrete enumerated things like interstate commerce, federal property, or navigable waters.

      But private wetlands aren’t instrumentalities of commerce, federal property, or navigable waters.

      They certainly aren’t navigable.

      1. ReaderY, of course there are navigable private wetlands. Silver Creek in Idaho is an example. It is a pretty effective instrumentality of commerce, too. Plenty of fly fishermen pay big bucks to equip themselves, get there, annoy the fish, and turn them loose.

        But of course you have announced a broad principle. Want to detail what it implies by using it to answer my specific questions? Do you assert there is a constitutional right to fill wetlands to do real estate developments? More generally, do you assert there is no federal power to regulate the environment?

        1. Well, of course a wetland is a navigable water if it’s navigable. Not if it’s an occasionally damp spot in the corner of a farmer’s field, or a drainage ditch that’s dry except when it’s raining.

          In the case of Silver Creek, the creek itself is navigable, the wetlands adjacent to it not so much. Indeed, if a body of water were navigable, it would no longer meet the definition of a “wetland”.

    2. The idea behind the Significant Nexus is the fact that almost no one send things directly into navigable water. As a rough guess, 9 out of 10 outfalls go into a common drainage ditch which is no way or form navigable in the traditional sense (you’d be hard-pressed to get a canoe into most, even if it wasn’t blocked by grating). Not regulating these outfalls would make hash out of the Clean Water Act, as it would not only make the majority of facilities unregulated, but it would make it very easy to escape regulation, as you just divert your outfall into an unnavigable common ditch.

      So some form of “Significant Nexus” idea is necessary in order to have decent environmental protection by regulating emitters who indirectly contribute to the quality of navigable water.

      However, the government has gone so far in the other direction that they need to be reigned back quite a bit.

      1. BoH, thanks for at least trying to answer. If I had to buy my question marks per each, I couldn’t afford to comment on this blog. The return on investment would be near zero. I take that as indication that most commenters on this blog come looking for agreement, confirmation, and tribal support, not discussion.

  11. The parties here were essentially collusive. Both sought to overturn the current rules. So it wouldn’t appear that there was a live case or controversy giving the judge jurisdiction to act.

    For that, one of the parties would have to be genuinely adverse to the others and be seeking a different outcome from the others. That just didn’t happen here. All parties in the case sought the outcome the judge gave them. It was completely uncontroversial.

    1. In my view, when a judge notices that both sides of a case are seeking the same outcome, the judge should dismiss the case for lack of jurisdiction. If the parties don’t take adverse positions, there is no case or controversy. Without having any jurisdiction in the first place, there is no authority to appoint counsel to advise on what an adverse party might argue if there was one.

      Judges acting as mediators to facilitate parties settling their differences is completely different from collusive parties who have no differences in the first place using the judicial process to get an outcome they both want.

  12. A female Jewish lawyer appointed by Obongo. No surprise here.

  13. Power. Unelected beauracrats crave power. Power corrupts and absolute power corrupts absolutely.

    Where are we or where are we going/ fighting from going? The goal is to have someone in some agency or department use as a pretext WOTUS to regulate farmers ruts for their tractors, the ability to add or change watering/ feed location on a 1000 acre grazing ranch, what trees/shrubs/ vegetation/ landscape features a person/ property owner may have in their yard.

    CERCLA, RICRA, CWA, etc. have very little if anything to do with holding actual people responsible for actual conduct. The fight over the definition of WOTUS is about the ability to have and maintain control. The notion of navigability, water basins, hydrology and impact on WOTUS are malleable pretext detached from the English language lexicon.

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