The Supreme Court’s lack of deference to the EPA’s view of Clean Water Act protections could be fodder for upcoming challenges to the Trump administration’s new water jurisdiction rule, attorneys say.
The Supreme Court in Cty. of Maui v. Hawai’i Wildlife Fund last week rejected the Environmental Protection Agency’s narrow reading of the Clean Water Act.
The EPA has maintained that Clean Water Act permits are only required for discharges from a pipe or other conduit into federally protected waters. But in a 6-3 opinion, the court said the law requires a permit for any “functional equivalent of a direct discharge” into a wetland, stream, river, or major waterway.
The Maui ruling came two days after the EPA and the Army Corps of Engineers published the Navigable Waters Protection Rule, which includes a narrowly defined reading of what waters and wetlands Congress intended to protect from pollution under the Clean Water Act.
The Maui case doesn’t address the scope of “navigable waters.” Rather, it deals with what discharges into navigable waters are regulated.
But Maui “could indirectly affect litigation over the Navigable Waters Protection Rule because it could signal that the Supreme Court is less likely to defer to EPA’s interpretation of the Clean Water Act,” said Neal McAliley, an environmental attorney with the Miami office of Carlton Fields P.A.
Groundwater as Connection?
Under the new rule, the Trump administration removed Clean Water Act protections from isolated wetlands that are connected to surface waters via groundwater, contending “if groundwater is not jurisdictional, it also makes practical sense that surface water features connected only via groundwater likewise are not jurisdictional.”
But attorneys say the Maui decision has weakened the government’s defense.
“If groundwater can be the connection to permitting in Maui, then why can’t groundwater be the connection for extending jurisdiction over isolated wetlands and seasonal waters?” said Steven Miano, an environmental attorney with Hangley Aronchick Segal Pudlin & Schiller.
The Maui ruling sent a clear message to the Trump administration, Miano said: “Don’t go too far in cutting Clean Water Act protections.”
And Sarah Peterman Bell, an environmental attorney with Farella Braun + Martel, said the Maui holding will be used as “confirmation that the courts have conclusively determined that there are situations where the Clean Water Act applies to discharges to groundwater.”
The Maui decision rejected the industry-preferred approach, which would have exempted all indirect pollution from Clean Water Act permitting requirements.
Justice Stephen Breyer, who authored the majority opinion, was joined by the court’s more liberal members as well as Chief Justice John Roberts and Justice Brett Kavanaugh.
However, Kavanaugh made it known in a separate concurring opinion that his reading of the Clean Water Act comports with the late Justice Antonin Scalia’s plurality opinion in Rapanos v. United States.
It’s Scalia’s opinion that President Donald Trump in February 2017 ordered the EPA and the Army Corps to consider when replacing and rewriting the Obama-era waters of the U.S. (WOTUS) rule. Trump’s order didn’t address Justice Anthony Kennedy‘s concurring opinion, which the Obama administration’s water rule heavily relied on.
The new Trump administration rule echoes Scalia in asserting jurisdiction over “relatively permanent, standing, or continuously flowing bodies of water” and not isolated wetlands and streams where the water flow is sporadic.
A former EPA Region 10 counsel, Mark Ryan of Ryan & Kuehler PLLC, said Kavanaugh is “telegraphing where he would vote if WOTUS ever makes it back to the Supreme Court.”
Challengers to the recent waters rule rewrite are likely to use “opinions from the two conservative justices to reaffirm protections for waters of the United States,” said Larry Liebesman, a former Justice Department environmental lawyer now at the environmental and water permitting firm of Dawson & Associates.
Attorneys for the Southern Environmental Law Center and Earthjustice, which were involved in Maui and related litigation, declined to discuss the impacts of the Maui ruling on the new Trump water rule.