Navigable Waters Rule Posted in Federal Register, Lawsuits Begin

Navigable Waters Rule Posted in Federal Register, Lawsuits Begin

The Environmental Protection Agency (EPA) published its final Navigable Waters Protection Rule in the Federal Register on April 20 and the rule will go into effect 60 days after publication. In January, the EPA and Department of the Army unveiled the rule that provides an updated definition of “Waters of the United States” (WOTUS). The finalization of the rule is likely to spur lawsuits from organizations arguing that the rule undermines protections from a 2015 WOTUS definition and other organizations arguing that the rule does not go far enough to clarify the definition. One of the first lawsuits was filed by the New Mexico Cattle Growers’ Association represented by the Pacific Legal Foundation less than a week after the rule was published.

“Over the years, EPA has changed the definition of ‘navigable waters’ to increase its regulatory authority at the expense of property owners’ rights. Despite the improvements of the new rules, its regulations are still unconstitutionally broad,” said Tony Francois, a senior attorney at Pacific Legal Foundation. “Specifically, the new rules let federal agencies control ponds, wetlands, and other property far removed from navigable waterways. These were never intended by Congress to be covered by the Clean Water Act.”

On the other end of the spectrum, several coalitions of environmental groups began filing lawsuits at the end of April. In addition, the state attorneys general from 17 states (California, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington and Wisconsin) filed suit on May 1. Their argument states, in part: “The 2020 Rule repeals the 2019 Rule and adopts a definition of “waters of the United States” that is much narrower and categorically excludes waters long understood as within the [Clean Water Act’s (CWA’s)] protections. That new definition conflicts with the text of the CWA, contradicts the CWA’s objective, and overlooks the Agencies’ prior scientific findings and longstanding policy and practice, and the recommendations of the Agencies’ Science Advisory Board.”

In addition, on May 8, Rep. Peter DeFazio, Chairman of the House Committee on Transportation and Infrastructure introduced the “Clean Water for All Act” in an effort to block the rule. With so many conflicting lawsuits already in play, it is unclear how the new rule will be implemented on the ground.

May 15, 2020