Bloomberg Law
Nov. 20, 2020, 11:00 AMUpdated: Nov. 20, 2020, 8:08 PM

Federal Water Rule Expected to Stay Murky Through Biden Term (2)

Bobby Magill
Bobby Magill

A Biden administration won’t be able to untangle the legal and regulatory “mess” under part of the Clean Water Act that determines which streams, wetlands and other waters get federal protection, legal scholars and litigators say.

Any move the Biden administration takes to clarify the definition of Waters of the United States, known as WOTUS, will continue the decades-long “merry-go-round” of administrative rule changes and litigation, said Larry Liebesman, a former Justice Department environmental lawyer who is now a senior adviser at the environmental and water permitting firm of Dawson & Associates.

A recent U.S. Supreme Court ruling failed to define WOTUS fully. And a bitterly divided Congress in 2021 is unlikely to make headway on the issue, particularly when congressional efforts to address Clean Water Act jurisdiction have failed in the past.

“I think it’s going to be a mess for a pretty long time,” said Dave Owen, a professor at the University of California’s Hastings College of the Law.

Rush on Development

A Biden administration will likely propose a new rule that expands the Trump administration’s of WOTUS, but not as broad as the Obama rule in order to pass muster with the Supreme Court’s conservative majority, said Patrick Parenteau, senior counsel at the Institute for Energy and the Environment at Vermont Law School.

The Environmental Protection Agency scrapped the Obama administration’s expansive interpretation of federal waters last year, and the new definition, known as the Navigable Waters Protection Rule, took effect in June. Both the Obama and Trump era rules are being challenged in court. The original rule was written in 1986.

The Trump-era definition, written after business sectors raised concerns that WOTUS applied to previously unregulated creeks and ditches, says the Clean Water Act doesn’t apply to small streams.

The new rule, which lifts federal protections for many small waterways, prevents developers from needing a federal permit for work in some types of waterways now excluded from the Trump administration’s WOTUS definition.

The narrower rule is in effect in every state except Colorado, where a judge blocked it from taking effect.

Developers are “rushing under this more lenient approach to wetlands and waters so they can get everything confirmed and move on with their projects, sometimes without getting a permit,” said Ellen Gilinsky, an independent consultant who served as the EPA’s associate deputy assistant administrator for water under the Obama administration.

WOTUS is the foundation for all Clean Water Act programs and the new rule’s repeal should be high on President-elect Joe Biden’s list of environmental priorities, Gilinsky said. The Biden transition team didn’t respond to requests for comment.

Options on the Table

Biden can take several avenues to redefine WOTUS or try to bring long-term certainty to what waters will receive federal protection during his term, legal scholars say. His Justice Department, for example, could switch positions in lawsuits challenging the 2015 WOTUS rule, Owen said.

“The DOJ could say we’re not going to defend the rule,” Owen said. “Litigation against the rule would be defended by intervenors. The litigation would be ongoing, but DOJ would be on the other side.”

A Biden EPA could decide whether to begin a new rulemaking process. That could be simple repeal, and then a replacement, which, like each iteration of the rule before it, likely would be challenged in court, he said.

“Any replacement is also going to have uncertain prospects. That means it’s going to take a long time for things to filter up to the Supreme Court, which itself doesn’t have a track record on issuing any finality to any of these rules,” Owen said.

Passing Court Muster

Rulemaking could take too long to prevent many streams and waters from being damaged by development, so the first step would be to get the Trump rule off the books, Gilinsky said.

“If that was the case, you’d go back to what was the status quo before the 2015 rule,” Gilinsky said. It would be unlikely that a new rulemaking would be finalized in four years, she said.

But the Supreme Court’s April ruling in County of Maui v. Hawai’i Wildlife Fund may complicate a return to Obama’s expansive WOTUS definition, said David Buente, a Sidley Austin LLP lawyer who represents industry clients.

The justices ruled that polluters must get permits for indirect water contamination that’s the “functional equivalent” of a direct discharge into federal waterways. Some attorneys interpreted the ruling as suggesting that pollution to groundwater would more often be regulated at the federal level.

Regulating groundwater in that manner “would change significantly, I think, the analysis that had been done during the Obama administration on the potential economic impact of a WOTUS rule,” Buente said.

“To me it’s a very open question how Biden’s EPA will address that,” Buente said. “I suppose they could say they will deal with surface water at this point and not address the question.”

Ultimately, it may be up to Congress, not the Supreme Court, to halt the “endless loop” of new WOTUS and resulting legal challenges, Parenteau said. In 2019, Republican Sens. Mike Braun (Ind.) and Joni Ernst (Iowa) introduced a “Define WOTUS Act” (S. 2356) that would codify the Trump administration’s rule, but the legislation hasn’t moved.

“The only way to stop it is Congress,” Parenteau said. “Nobody knows what the scope of the Clean Water Act is.”

(Adds statement by Ellen Gilinsky in 17th paragraph. )

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