Developers, ranchers, farmers and others who fill or alter bodies of water have seen a never-ending carousel of regulatory changes to the federal rules that apply to such activities. Earlier this week, an Arizona federal court made one more change while new rules are being written.
On August 30, 2021, the U.S. District Court for the District of Arizona vacated a 2020 rulemaking that had pared back protections to certain bodies of water (see attached August 30, 2021 Opinion). The 2020 rulemaking replaced a 2015 rule defining “waters of the United States” more broadly under the Clean Water Act. The court vacated the 2020 rule finding that it could result in serious environmental harm. The court noted “[t]he seriousness of the Agencies’ errors in enacting the [2020 rule], the likelihood that the Agencies will alter the [2020 rule] definition of ‘waters of the United States,’ and the possibility of serious environmental harm if the [2020 rule] remains in place upon remand, all weigh in favor of remand with vacatur.” Currently, the U.S. EPA and the Army Corps of Engineers are working on new rules but had, in the meantime, left the 2020 rulemaking in place. The court left open for further briefing and argument whether the 2019 regulatory action repealing the 2015 rule is valid.
This saga began back in 1972 when Congress enacted the Clean Water Act regulating discharges to “waters of the United States,” without further definition of such waters. Federal agencies later defined “waters of the United States” by regulation. That regulation was challenged by the regulated community and a divided U.S. Supreme Court weighed in in 2006. Rapanos v. United States, 547 U.S. 715 (2006). Confusingly, the Court’s plurality opinion set forth competing standards for what constituted “waters of the United States.” In 2015, the U.S. EPA and the Army Corps of Engineers promulgated regulations defining what constituted “waters of the United States,” which included a broader swath of water bodies, such as ephemeral streams, than before. In 2019, these same agencies (under a different administration) repealed the 2015 rulemaking and instituted the prior regulatory definition of “waters of the United States.” Then, in 2020, the agencies promulgated a new rule more strictly construing the breadth of federal reach by excluding certain water bodies, like ephemeral streams, from regulation under the CWA.
With the court’s action, at least for now, U.S. EPA and the Army Corps of Engineers will revert back to the definition of “waters of the United States” in existence prior to 2015. Stay tuned!