Federal protections for millions of small streams and wetlands across the country were eliminated on Monday, following an unsuccessful legal effort to block new regulations that redefine “waters of the United States.”
Officials with the Washington Department of Ecology are scrambling to make sure that nobody proceeds to fill wetlands or damage waterways, now protected solely by state law. A major concern is the potential need for many more staffers to write permits and enforce state water-quality laws, according to Curt Hart, spokesman for Ecology.
“We’re still in the process of determining what we’re going to do,” Hart said. “We still have obligations to protect these waters, which are considered waters of the state.”
Developers may be forced to wait even longer to obtain approvals for construction projects previously issued by U.S. Army Corps of Engineers or Environmental Protection Agency, Hart said. It isn’t clear how the Corps or EPA will respond to the new rules in actual practice.
Long history of legal battles
The revised regulations, which come under the federal Clean Water Act, were written by Trump administration officials who wanted to reduce federal jurisdiction over streams and wetlands and clarify existing rules. The new rules supplant regulations approved in 2015 during the previous Obama administration. Those 2015 rules allowed for federal jurisdiction over smaller streams and wetlands, provided they were connected to larger waterways.
The issue of federal jurisdiction over wetlands and waterways has been a hard-fought legal conflict over the past 35 years, including three cases heard by the U.S. Supreme Court. None of the rulings has resolved the issue of federal jurisdiction, because of ambiguities found in the underlying Clean Water Act.
In fact, during the latest legal skirmish, a U.S. district judge in California refused to issue an injunction to keep the rule from going into effect nationwide — but a judge in Colorado granted a similar injunction that blocked the rule for Colorado alone.
In the first case, 17 states were among the plaintiffs bringing the lawsuit, while 23 other states were allowed to intervene in support of the new Trump rule.
“Were the court tasked with the question of whether the new rule represents wise environmental policy or the best approach to protecting water resources that could be supported by scientific data, the result might be different,” stated Judge Richard Seeborg in his ruling (PDF 258 kb). “The court’s narrow role, however, is only to evaluate whether the rule has been adopted in compliance with the requirements of the Administrative Procedure Act…
“Had Congress chosen to speak more clearly about how broadly CWA jurisdiction was to extend, or if the CWA did not contemplate the balancing of interests in pursuit of its ultimate goals, it might be possible to characterize the 2020 rule as an ‘unreasonable’ interpretation,’” the judge continued.
But major policy changes are permitted from one administration to the next, the judge noted. “The requirement is only that agencies must explain the basis for their change, and defendants have adequately done so here.”
Effects in Washington state
Laura Watson, director of the Department of Ecology, said the federal retreat from its long-held jurisdiction is leading to confusion and uncertainty within her agency, and it will no doubt affect developers who must obtain permits for activities around streams and wetlands.
“This is another tragic abdication of federal responsibility to protect the environment,” Watson said in an April news release. “It also puts roadblocks in the way of economic progress. While Washington law continues to provide protections for these streams and wetlands, the federal rollback leaves our state without an established permitting process or clear guidelines to review potential environmental impacts.”
Under federal jurisdiction, developers can move quickly if their project complies with standard conditions written into “national permits” pre-approved for various types of construction. In the past, when a project falls outside of federal jurisdiction, Ecology may issue an “administrative order” to ensure compliance with state wetlands or water-quality laws.
If administrative orders are requested for a large number of projects, approvals could be delayed significantly, Hart said. One option is to approve state “general permits” — something like the national permits — to speed up approvals, he said. But the process of developing these general permits would take time and staffing.
In 2019, 170 projects were approved through a process involving a joint aquatic resource permit application (JARPA) used by both state and federal agencies. Only five of those were handled solely by Ecology through administrative orders. In 2018, 170 projects were approved, of which eight required only administrative orders from the state. The number of projects that fell under nationwide permits and requiring no state involvement cannot be easily determined, Hart said.
Meanwhile, Ecology is expanding its lines of communication with city and county governments, which share in permitting and enforcement activities under the state’s 1945 Water Pollution Control Act, the 1972 Shoreline Management Act, and the 1990 Growth Management Act.
Permits in the state of Colorado may be handled differently from anywhere in the country, at least temporarily, as the result of Friday’s ruling by U.S. District Judge William J. Martínez, who found that the state was in an unusual situation.
Colorado has no laws that would allow anyone to fill wetlands, Martinez noted in his ruling (PDF 247 kb). The only exception allowed for construction projects is a permit from the federal government. The judge was not sympathetic to the state’s argument that the loss of federal jurisdiction could halt certain construction projects. The federal government is not responsible for state law or policy, he said.
What convinced him to issue the injunction, however, was the argument that enforcement of water-quality and wetland-protection laws would suddenly be shifted from the federal to the state government at considerable expense. Since that cost could not be recovered in the future, the new rules would result in “irreparable harm” if the injunction were not granted.
To issue the injunction, Martinez needed to be convinced that Colorado, which brought the case, was likely to prevail when the full case was heard at trial. His ruling in support of the injunction was based on what he called the “fractured” Supreme Court case, Rapanos v. United States (pdf 1.3 mb). His reasoning is highly instructive.
The case involved two developers, one who filled a wetland to build a shopping mall and another who was denied a permit to build condominiums on wetlands. Both contended that no federal permit was needed, because the wetlands did not meet the definition of “waters of the U.S.”
The decision handed down from the U.S. Supreme Court resulted in an order to remand the case to district court, but the ruling was strangely divided among the justices — including four who upheld the government’s position on wetlands outright.
Four other justices, led by Antonin Scalia, signed onto an opinion that relied on the dictionary definition of “navigable waters,” a term mentioned several times in the Clean Water Act. That opinion found that federal jurisdiction should cover only navigable waters plus waterways and wetlands connected with permanent flow. That language formed the basis of the 2020 Trump definition of “waters of the U.S.”
Justice Anthony Kennedy joined with the four justices in sending the case back to lower court, but Kennedy said a stream or wetland would fall under federal jurisdiction if it bears a “significant nexus” to a navigable waterway, thus affecting the physical, biological or chemical integrity of the downstream waters. That language formed the basis of the 2015 Obama definition of “waters of the U.S.”
“It is notoriously difficult to understand what Rapanos is for,” Judge Martinez wrote after analyzing the case, “but it is much simpler to understand what Rapanos is against.”
Five justices — the four dissenters plus Kennedy —rejected Scalia’s limited view of waterways under federal jurisdiction. Since the 2020 Trump rule largely followed Scalia’s approach to the issue, the rule would not likely hold up following a full court review, Martinez said. Whatever the final outcome, he added, it is in the public interest to maintain the status quo — “what the regulated community is already accustomed to, pending the resolution on the merits.”
Ongoing conflicts and new lawsuits
So in Colorado, the new rule cannot be implemented, while elsewhere in the country, it is the law of the land at the moment. After the rulings were issued in California and Colorado, the group Earthjustice filed two new lawsuits on Monday, as the new rule went into effect for most of the country.
The two cases claim that the 2020 Trump rule is contrary to the “single objective (of the Clean Water Act) to protect the physical, chemical and biological integrity of the nation’s waters.” Furthermore, the rule ignores the scientific evidence regarding the ecological importance of protecting smaller streams and wetlands. And the lawsuits claim that the Trump administration failed to follow proper procedures in overturning the 2015 Obama rule and implementing the new rule.
Reviews of the science during the Obama administration “found unequivocal consensus evidence that all tributaries, including perennial, intermittent and ephemeral streams, ‘exert a strong influence on the integrity of downstream waters,’ and that all tributaries have a significant nexus to navigable-in-fact waters, interstate waters, and the territorial sea,” according to the new filings.
One lawsuit (PDF 254 kb) was filed in Seattle on behalf of the environmental groups Puget Soundkeeper Alliance, Sierra Club and Idaho Conservation League, along with Mi Familia Vota, a Latino civic engagement group.
The other lawsuit (PDF 283 kb) was filed in Tucson, Ariz., on behalf of the Pascua Yaqui Tribe in Arizona, the Quinault Indian Nation in Washington, the Fond du Lac Band of Lake Superior Chippewa in Minnesota, the Tohono Oʼodham Nation in Arizona and the Bad River Band of Lake Superior Chippewa in Wisconsin.
On top of other issues, the second case invokes issues of treaty rights that require the U.S. government to maintain clean water for fishing and other uses by the Quinault and other tribes. Where water issues are not explicitly covered by treaty rights, the lawsuit argues that the federal government has a legal obligation to protect waters that may affect native peoples and their traditions.