No, the “waters of the United States” subject to Clean Water Act regulation do not include things like dry land over which water occasionally flows. That’s the conclusion of a federal judge who just put on hold the Environmental Protection Agency’s latest power grab.
The Clean Water Act empowers EPA and the Army Corps of Engineers to regulate the use of private property that affects “navigable waters,” which the Act defines as “the waters of the United States.” In late June, EPA and the Corps finalized a rule defining that term. This was, they said, a boon to those potentially subject to CWA regulation, because “the rule will clarify and simplify implementation of the CWA consistent with its purposes through clearer definitions and increased use of bright-line boundaries…and limit the need for case- specific analysis.”
In reality, it was yet another step in what the Supreme Court called “the immense expansion of federal regulation of land use that has occurred under the Clean Water Act.” The rule extends federal regulation—and prohibitions on land use—to “tributaries,” which it defines as anything that directly or indirectly “contributes flow” to an actually navigable body of water or wetland and “is characterized by the presence of the physical indicators of a bed and banks and an ordinary high water mark.” The point of that legalese is to reach things like “perennial, intermittent, and ephemeral streams”—in other words, areas that aren’t really “waters” at all. The broader the definition, the more land that is subject to CWA permitting requirements and, ultimately, EPA control.
The problem for the federal government is that the Supreme Court rejected basically the same expansive approach in a 2006 case, Rapanos v. United States. In a separate opinion that some believe to be controlling, Justice Kennedy explained that, to be within the reach of the Act, a water must, at the least, “significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”
Judge Ralph Erickson recognized that the new rule “suffers from the same fatal defect.” It “allows EPA regulation of waters that do not bear any effect on the ‘chemical, physical, and biological integrity’ or any navigable-in-fact water.” That includes “vast numbers of waters that are unlikely to have a nexus to navigable waters within any reasonable understanding of the term.” In other words, EPA is overreaching once again.
This result should not be surprising to the agency; a colleague and I (among many others) helpfully raised the same points in comments on the proposed rule last year.
Judge Erickson also identified other defects. For one, the rule is arbitrary and capricious because it “asserts jurisdiction over waters that are remote and intermittent,” despite there being “no evidence [that] actually points to how these intermittent and remote wetlands” affect the quality of navigable waters. It also “arbitrarily establishes the distances from a navigable water that are subject to regulation,” roping in any damp patch within 4,000 feet—a number that, it appears, was plucked out of thin air.
For the 13 states party to the lawsuit, the rule is now stayed. EPA has said it will apply the rule elsewhere beginning on August 28.
Judge Erickson’s decision will not, of course, be the final word on this matter. In other cases, EPA has argued (with some success) that district courts lack the power to decide this kind of dispute. But Judge Erickson’s decision is notable as an early preview of the way that courts are likely to look at the issues at play in challenges to the rule. And its even-handed application of Justice Kennedy’s “significant nexus” approach from Rapanos suggests that, in the end, the "waters of the United States" rule will be sunk.