Two Courts Differ On New WOTUS Definition
The Trump administration’s new definition of “waters of the United States” subject to federal Clean Water Act jurisdiction batted .500 in the first two of its court challenges heard.
The Navigable Waters Protection Rule was announced by Environmental Protection Agency Administrator Andrew Wheeler on Jan. 23 in Las Vegas and was published in the April 21 Federal Register. It replaces the Obama administration’s 2015 Clean Water Rule and delineates four categories of federally regulated waters as well as variety of nonjurisdictional waters (AOGR, February 2020, pg. 14). The rule became effective June 22.
On June 19, according to published reports, The U.S. District Court for the Northern District of California denied a motion filed by California and 16 other states and cities for a nationwide preliminary injunction. But on the same day, in what the Environmental Law and Policy Monitor terms a “seemingly opposite conclusion,” the U.S. District Court for the District of Colorado granted the state of Colorado’s motion to prevent the rule from taking effect in that state.
In California, according to published reports, Judge Richard Seeborg concluded EPA’s and the U.S. Army Corps of Engineers’ interpretation of WOTUS was entitled to deference. “The court emphasized that Congress failed to clearly define the term in the statute and that there had been a shifting interpretation of the term between administrations,” the reports say. “The court acknowledged that interpretative changes motivated by a change in administration were inherently unreasonable and concluded the agencies’ current interpretation–even if it was inconsistent with the agencies’ 2015 interpretation–likely was not inconsistent with the text, structure and purpose of the CWA.”
In Colorado, however, Judge William J. Martinez found the Navigable Waters Protection Rule contradicted the U.S. Supreme Court’s 2006 ruling in Rapanos v. United States, the reports continue.
They say, “Judge Martinez concluded the rule impermissibly implements the jurisdictional test put forth by the four-justice plurality in Rapanos . . . rather than Justice (Anthony) Kennedy’s concurring opinion. Given the rule’s contradiction of Justice Kennedy’s concurring opinion . . . Judge Martinez determined the plaintiffs likely would succeed in challenging the rule and halted its implementation in Colorado.”
The reports note the Navigable Waters Protection Rule faces additional challenges in Arizona, Washington, South Carolina and Massachusetts as well as in New Mexico where the New Mexico Cattle Growers Association contends the new rule doesn’t go far enough in paring back the CWA’s reach.