The latest season of Clean Water Act (CWA) changes are now streaming from the courts and federal agencies. The Biden administration and lower courts have picked up where prior administrations and the U.S. Supreme Court left off, as we reported last year in Binge-Watching the Clean Water Act Cases and Rules. Unless Congress somehow finds bipartisan support for legislative fixes, we expect contentious CWA rulemaking proceedings to resume and protracted CWA litigation to prosper. These actions constrain land developers, utilities and companies with projects or operations that impact wetlands or other water features. These decisions might also give environmental groups and agencies stronger grounds on which to base CWA claims targeting sewers, pipelines, tanks, and other systems that leak or seep wastes into groundwater.

Maui’s Functionally-Equivalent Point Source Discharges into Groundwater

In July, a federal court in Hawaii found that the County of Maui has violated the CWA by injecting its treated sewage into the ground without a CWA discharge permit, becoming the first court to apply the Supreme Court’s 2020 interpretation of when CWA permitting requirements apply to pollutant sources flowing into the ground before reaching surface waters. In the 2020 County of Maui v. Hawaii Wildlife Fund decision, the Court held that such an indirect discharge only requires CWA permitting if it is the “functional equivalent” of a “point source” directly discharging into CWA-regulated “navigable waters.”

On remand, the district court in Hawaii granted plaintiffs summary judgment, Hawaii Wildlife Fund et al v. County of Maui (D. Haw. Jul 26, 2021), based on an analysis of all seven factors suggested in the Supreme Court’s decision, as well as other considerations. The court held that, on balance, the treated sewage injections were the functional equivalent of direct discharges into the ocean. The court stuck to its position that the transit time and distance from the wastewater’s injection point to its entry into the ocean were relatively short and also emphasized the raw volume of discharged wastewater, as an additional factor that it found relevant in this case. The July ruling gave little consideration to the dilution and chemical transformation of specific chemicals in the treated sewage after ground injection, focusing instead on the fate of the injected wastewater as a whole. Experts generally agreed that all of the well injections on the island eventually reach the ocean. More specific studies were able to trace roughly two percent of this wastewater to specific seeps found on the ocean floor. The court noted that, even if it considered only “the wastewater that emerges at the monitored seeps,” the County’s discharge “would amount to millions of gallons of wastewater” reaching the ocean, in a condition that no party argued was “devoid of pollutants.”

In September, the Biden administration took another step toward expanding the government’s view of such CWA jurisdiction by formally rescinding a guidance memorandum published by the Environmental Protection Agency in the final days of the Trump administration. While the scope of the Supreme Court’s “functional equivalent” standard will inevitably be shaped by future judicial and administrative rulings, these initial decisions suggest that the circumstances when CWA liability attaches to these indirect point source discharges may be growing.

Defining “Waters of the United States”

When it wrote the CWA, Congress asserted jurisdiction over pollutant discharges into “navigable waters,” but defined this critical term only as “waters of the United States” (WOTUS). Thus began the mystery surrounding which water and wetland features are protected under both the CWA § 404 “Dredge and Fill” and the CWA § 402 “NPDES” permit programs. Over the next five decades, courts and the federal agencies have pushed competing views of WOTUS.

The Obama administration attempted to consolidate these interpretations in its 2015 “Clean Water Rule,” including a concurring opinion offered by Supreme Court Justice Breyer in the divided 2006 Rapanos decision. This interpretation would extend CWA jurisdiction to wetland and waters possessing a “significant nexus” to navigable waters in the traditional sense by significantly affecting “the chemical, physical, and biological integrity” of such traditional navigable waters. The 2015 rule was effectively trumped (so to speak) in 2019 when the next administration cast it aside, temporarily reinstating the government’s pre-2015 regulatory definition. As part of its “repeal and replace” initiative, the Trump administration eventually adopted the 2020 Navigable Waters Protection Rule (NWPR). The NWPR favored Justice Scalia’s plurality opinion in Rapanos, holding that WOTUS should extend only to “those relatively permanent, standing or continuously flowing bodies of water … described in ordinary parlance as [streams, oceans, rivers, and lakes]” and “only those wetlands with a continuous surface connection to bodies that are [WOTUS] in their own right.”

To no one’s surprise, the Biden administration published Executive Order 13990 on January 25, 2021, declaring its science-based approach to rulemaking and revoking several directives issued by the Trump administration. The revoked orders included President Trump’s Executive Order 13778 embracing Justice Scalia’s narrower interpretation of WOTUS. On June 9, 2021, the new administration followed these marching orders by announcing plans to propose two rounds of rulemaking, an initial rule that would withdraw the NWPR, again reinstating the agencies’ pre-2015 WOTUS definition, and a second regulation that would adopt a new definition for this critical CWA term.

In August and early September, the agencies held a series of public meetings and opened a docket for submission of written comments to inform their pending rule proposals. The agencies emphasize their plans to consider the CWA § 101(a) objective to “restore the chemical, physical, and biological integrity of the Nation’s waters,” the latest peer-reviewed and relevant science, practical WOTUS implementation approaches, and the  experiences of a diverse range of stakeholders including landowners, farmers, environmental groups, and disadvantaged communities with environmental justice concerns. The agencies’ WOTUS outreach program therefore includes planned consultations with state and tribal authorities and ten regional roundtables to provide input from the “full spectrum of stakeholders” and to “highlight similarities and differences across geographic regions.” To establish a “durable” WOTUS definition that can survive judicial scrutiny and not become the next target for repeal, the Biden administration appears to recognize the importance of factoring the CWA § 101(b) objective, preserving the States’ primary regulatory role in the development and use of land and water resources. The agencies also seek input on “how climate change affects the chemical, physical, and biological integrity of the nation’s waters” consistent with President Biden’s broader directives in Executive Order 13990.

In response to several challenges proceeding against the 2020 WOTUS rule, the government has also moved to remand the NWPR back to the agencies for further revisions. On its website, the U.S. EPA has posted copies of these pleadings as well as agency data suggesting a narrowing effect on WOTUS from the NWPR during its first year of implementation. Fewer dredge and fill permit applications are being filed and far fewer are being required under CWA jurisdictional determinations, especially in arid states.  So far, federal courts in South Carolina, Massachusetts New York, and California have granted the government’s remand motions, but only one Arizona decision, Pasqua Yaqui Tribe v. U.S. EPA (D. Ariz. Aug. 30, 2021), has granted the challengers’ related requests that the 2020 NWPR also be vacated.

While still arguing for remand of the NWPR without vacatur in other cases, the government seems comfortable with the Arizona district court decision, as shown by the EPA website posting pre-2015 WOTUS terms and implementation guidance and stating: “In light of this order, the agencies have halted implementation of the Navigable Waters Protection Rule and are interpreting ‘waters of the United States’ consistent with the pre-2015 regulatory regime until further notice.” Following this September 3, 2021 announcement, the Army Corps of Engineers has applied the pre-2015 WOTUS rule when issuing formal jurisdictional determinations (JDs), while allowing its prior JDs to remain in effect.

The agencies are promising to propose a more “durable” WOTUS definition that addresses the concerns raised with both the 2020 NWPR and the 2015 Clean Water Rule. Certainly, the Trump and Obama administrations staked positions on either sides of the WOTUS gap created by Congress when it adopted the CWA without a satisfactory definition of its most essential term. Whether the Biden administration can bridge this gap or simply feed the insatiable appetite of CWA litigants is still the unsolved mystery that brings us back to this drama time and again.