Water law experts disagree broadly about whether two federal court decisions vacating the Trump-era definition of the waters of the U.S., or WOTUS, applies nationwide as the Biden administration defines the term for itself.
“There has been a period of transition and confusion since” the August decision vacating the Trump-era Navigable Waters Protection Rule, said Kevin Minoli, a partner at Alston & Bird LLP in Washington and former principal deputy general counsel at the Environmental Protection Agency during the Obama administration.
The confusion stems mainly from at least four federal court rulings—two vacating the the Trump-era rule and two remanding without vacatur.
“There are two confusing rulings from two federal courts,” Larry Liebesman, a former Justice Department environmental lawyer who is now a senior adviser at the water permitting firm of Dawson & Associates, referring to the rulings vacating the Trump rule.
“The question is, how is this treated nationally?” he asked.
Waters of the U.S. are widely expected to remain in limbo until an appellate court or the Supreme Court rules on the limits of federal waters jurisdiction under the Clean Water Act, or until Congress clarifies the law—all of which could take years.
Cascade of Litigation
The Clean Water Act leaves it to the EPA and Army Corps of Engineers to define which wetlands and streams fall under federal jurisdiction. But like a swinging pendulum, each administration has crafted its own definition since the George W. Bush administration in 2008, leading to a flood of litigation each time.
The Obama administration expanded the waters under federal jurisdiction in 2015, but the Trump administration slashing protections for ephemeral streams and other wetlands in 2020.
The Trump-era rule prompted a nationwide cascade of litigation seeking to overturn it as the Biden administration initially kept it in place while the EPA and Army Corps write a new WOTUS definition.
But now, the George W. Bush-era definition is back in force following an Aug. 30 ruling from the U.S. District Court for the District of Arizona. The agencies, which had originally planned to keep the NWPR in effect while writing a new definition, didn’t ask the court to vacate the Trump-era rule.
Since the district court ruling, the Army Corps has issued 211 determinations showing whether proposed development is in federal waters under the Bush-era rule, spokesman Douglas Garman said.
The agencies expect to take a year or more to finalize a new federal waters definition. The EPA didn’t immediately respond to a request for comment.
No ‘Robust Discussion’
The mixed messages are the source of most of the legal confusion. The New Mexico, Massachusetts and California federal courts assumed that the Arizona federal court’s vacatur applied nationwide without any robust discussion in their rulings about it, Minoli said, calling that “unusual.”
The U.S. District Court for the Northern District of California wrote that the environmental group arguing to vacate the Trump-era rule was “not persuasive,” and no evaluation exists of the merits of Trump-era water regulations that “would support a finding that the rule should be vacated.”
The U.S. District Court for the District of New Mexico granted the Navajo Nation’s request to vacate the rule, saying the “cascading and cumulative downstream effects” of the Trump-era rule—including degraded water quality, flooding, drought and erosion— would “continue unabated” if left in place.
But the New Mexico, California and Massachusetts courts weren’t clear about the scope for the vacatur, leaving it open to challenge outside the district court’s jurisdiction, Minoli said.
“It’s not uncommon for a district court judge to vacate a rule and to have it be ambiguous as to the scope of that vacatur,” he said. “Other districts will choose to either give credence to that decision, or ignore it.”
‘File Like Hell’
The lack of consistency from the federal district courts open the possibility that the Trump-era rule is vacated only in the circuits that include Arizona and New Mexico, Liebesman said.
Business groups intervening in the cases as part of their advocacy for the Trump-era rule can get the courts to clarify the scope of the vacatur, Liebesman said. “They’re going to file like hell,” he said.
Despite confusion, the New Mexico ruling added weight to the Arizona vacatur, Minoli said.
“It makes it marginally harder for someone to argue that it’s not nationwide and it makes it easier for the government to be implementing it as though it was nationwide,” he said. “I don’t know that it should stop anyone who wants to have a day in court on that question from pursuing that.”
Other legal experts say there’s no confusion at all, and that the Navigable Waters Protection Rule is, in fact, sidelined in every state.
The Bush-era rule applies nationwide because the federal government has said so, said Dave Owen, a law professor at the University of California-Hastings.
“I don’t think there’s a conflict,” he said. “You have some courts saying, ‘I’m going to let the agency decide what to do next.’ Others say they want to vacate. And that would create confusion if the agencies hadn’t then come along and said, ‘We’re treating the Navigable Waters Protection Rule as vacated nationwide.’”
The odds of a federal court reversing a ruling vacating a rule that the agency itself said it’s not going to implement “are very low,” Owen said.
Future litigation over WOTUS can be expected to clarify the scope of federal jurisdiction over streams and wetlands, Owen said.
But it’s possible individual challenges of Army Corps waters jurisdictional determinations made using the Bush-era rule could be the next vehicle to get an appellate or Supreme Court ruling that would constrain future WOTUS definitions, Owen said.