April 22, 2020 is the 50^th anniversary of the first Earth Day, a global holiday that unites citizens of the Earth to take better care of our planet.

Earth Day was initially proposed by Wisconsin Senator Gaylord Nelson as a way to bring awareness to ongoing ecological issues and concerns. It took place on April 22, 1970 with a series of “teach-ins” on college campuses across America. It then gained national attention and momentum. The first Earth Day inspired the creation of the Environmental Protection Agency (EPA). It also lead to the passage of the Clean Air and Clean Water Acts along with numerous other environmental laws and regulations.

The next Earth Day did not take place until April 22, 1990. Numerous corporations and celebrities endorsed the holiday, and over 200 million people worldwide came together to celebrate. Now Earth Day is an annual event observed around the world. It continues to inspire rallies, cleanup projects, and volunteer efforts. It also provides an opportunity to bring awareness to ongoing and ever-evolving environmental issues like climate change, pollution, and deforestation.

Earth Day is often celebrated outdoors in large groups. Community members gather to perform services such as picking up litter or planting trees. Many others participate in marches or protests about ways we can minimize our impact on the planet and improve global environmental health. However, given the ongoing COVID-19 pandemic and need for social distancing, Earth Day 2020 is a little different. The majority of events are taking place online rather than outside. Still, there are plenty of ways to celebrate. 

While outdoor community gatherings are largely cancelled this year, countless digital resources and events are taking place to make the 50^th anniversary memorable and impactful. Earth Day’s official website has an interactive map with links to events happening virtually all around the United States and the globe. This means you can participate in events in your community, on the other side of the country, or anywhere on the planet!

Of course, April 22^nd isn’t the only day to celebrate the Earth. The National Ocean Service has a list of 10 simple things you can do every day to protect and improve our planet in the short- and long-term. These steps are also laid out in their handy infographic below.

At Schroeder Law Offices, we try to celebrate Earth Day every day. To learn more about what we do and about all things water, check out our Schroeder Law Offices blog!

Last month, the Environmental Protection Agency (EPA) and the Army Corps of Engineers announced the repeal of the 2015 Waters of the United States (WOTUS) rule. The controversial 2015 rule incorporated changes to 1986 and 1988 regulations and incorporated the “significant nexus” standard articulated by Justice Kennedy’s concurrence in Rapanos v. United States, 547 U.S.  715 (2006).  The 2015 change occurred through the addition of the defined term “neighboring” which broadened the interpretation of “adjacent” waters (https://www.federalregister.gov/documents/2015/06/29/2015-13435/clean-water-rule-definition-of-waters-of-the-united-states at 37105).

The 2015 rule was the subject of numerous lawsuits and had been found illegal by five federal courts including: (1) the District Court for the District of North Dakota; (2) the District Court for the Southern District of Georgia; (3) the District Court for the Southern District of Texas; (4) the District Court for the District of Oregon; and (5) the District Court for the District of Ohio. With the repeal of the 2015 rule, EPA and the Army Corps of Engineers will reinstate the 1986 and 1988 regulations in the interim while a new rule is promulgated. These regulations are encompassed in: 33 C.F.R. 328; 40 C.F.R. 110; 40 C.F.R. 112; 40 C.F.R. 116; 40 C.F.R. 117; 40 C.F.R. 122, 40 C.F.R. 230; 40 C.F.R. 232; 40 C.F.R. 300; 40 C.F.R. 302; and 40 C.F.R. 400. 

The EPA and Army Corps of Engineers cited four primarily reasons for repealing the 2015 rule:

1. The rule did not implement the legal limits on the scope of agency authority under the Clean Water Act as intended by Congress and reflected by Supreme Court Cases, including Rapanos;
2. The rule failed to adequately consider and accord due weight to Congressional policy in the Clean Water Act § 101(b) to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution” and “to plan the development and use . . .of land and water resources.” 33 U.S.C. 125(b);
3. The rule led agencies to interpret the rule in a way that pushed the limits of agency constitutional and statutory authority absent a clear statement from Congress, authorizing the encroachment of federal jurisdiction over traditional State land use planning authority; and
4. The distance-based limitations in the rule suffered procedural errors and lacked adequate support in the record.

With the repeal of the 2015 rule came the filing of lawsuits attacking the constitutionality of the 1986 and 1988 regulations. On the same day as the repeal was announced, the Pacific Legal Foundation filed a Complaint on behalf of the New Mexico Cattle Growers’ Association challenging the reversal and the allegedly even broader interpretation of WOTUS employed under the 1986 and 1988 rules (https://pacificlegal.org/press-release/epa-sued-for-relying-on-illegal-rules-following-wotus-repeal/). The Complaint can be found at: https://pacificlegal.org/wp-content/uploads/2019/10/nm_cattle_growers_v_epa_complaint.pdf.

In contrast, a group of eleven environmental organizations filed a law suit in the Federal District Court for the District of South Carolina challenging the 2015 rule’s repeal based on allegations that it “strips away crucial clean water protections from rivers, lakes, streams, and other waters that feed drinking-water sources for 200 Million Americans” (https://defenders.org/newsroom/conservation-groups-challenge-repeal-of-clean-water-act-protections-federal-court).  In light of these seemingly opposite claims, EPA and the Army Corps of Engineers will certainly suffer attacks from all sides as they attempt to establish a clear and implementable regulatory definition of WOTUS that better effectuates the language, structure, and purpose of the Clean Water Act.  

The repeal of the 2015 rule was published in the Federal Register on October 22, 2019 and can be found at: https://www.govinfo.gov/content/pkg/FR-2019-10-22/pdf/2019-20550.pdf.

(Photo Credit: https://www.tva.gov/Environment/Managing-the-River)

The Public Trust Doctrine is seeping to California’s aquifers, bringing something like conjunctive surface water and groundwater management to the state. Conjunctive management is a legal approach to managing surface water and groundwater as an interconnected resource. Often states separate the regulation of groundwater from surface water. Conjunctive management attempts to reconnect the regulation of surface water and groundwater to better match real-world hydrological effects.

            Groundwater often supplies water to rivers, called “baseflow” within a “gaining reach,” and pumping can reduce groundwater’s contribution to surface streams. (See https://water.usgs.gov/edu/rivers-contain-groundwater.html). Likewise, surface water recharges aquifers in “losing reaches.” Regulating surface water and groundwater together is a relatively new development in water law, as legal systems catch up to modern scientific understanding. California has never adopted a groundwater code, let alone explicitly adopt conjunctive management.

            The passage of California’s Sustainable Groundwater Management Act in 2014 ushered in new planning and review scheme for groundwater use and management in the State. (https://www.water-law.com/groundwater-sustainability-plan-regulations/ ). The legislation attempts to prevent “undesirable effects” of groundwater overconsumption and bring groundwater use into a sustainable pattern. Cal. Water Code § 10721(x)(1)-(6).

            Regulation of surface water in California has been affected by the Public Trust Doctrine. Nat’l Audubon Soc’y v. Superior Court explicitly recognized that the Public Trust Doctrine would supplement statutes governing surface water. 33 Cal. 3d 419 (1983) (“Audubon”). (The Public Trust Doctrine is a well-established principle in California that the State hold certain resources in trust for the benefit of the public, and must take these principles into account when making natural resource decisions.) The case dealt with diversions from non-navigable streams flowing into Mono Lake that is “navigable” under state law. The Court found support for the application of the Public Trust Doctrine to non-navigable tributaries in previous cases like Audubon, showing that the doctrine can reach upstream to prevent harms to downstream navigable streams and lakes.

            In the recent decision Environmental Law Foundation v. State Water Resources Control Board, California’s Third District Court of Appeals held that the Public Trust Doctrine can apply to groundwater that is hydraulically connected to navigable surface waters, like a “tributary” to the surface stream. 237 Cal. Rptr. 3d 393 (2018) (“Control Board”). (Interestingly, this application of the Public Trust Doctrine implicitly favors surface water over groundwater sources, since the reasoning does not support finding surface water as “tributary” to groundwater sources).

            Until Control Board, the courts did not apply the Public Trust Doctrine to groundwater, likely on the basis that aquifers are non-navigable. The court, using the reasoning found in Audubon, found groundwater extraction in the region near the Scott River would reduce surface flows and harm public trust interests in the navigable river. In effect, the Public Trust Doctrine would extend to any groundwater source that provides water, or has stopped providing water, to a navigable surface water body.

            This follows a trend in applying surface water laws and regulations to groundwater. In Hawaii Wildlife Fund. v. County of Maui, the Ninth Circuit decided that discharges into groundwater could be regulated by the Clean Water Act. 881 F.3d 754 (9th Cir. 2018). Typically, the Clean Water Act does not apply to groundwater. See 80 Fed. Reg. 37054, 37099 (June 29, 2015). But since the aquifer was hydraulically connected to the Pacific Ocean, the aquifer was a “conduit” transporting pollutants to the sea. For more information, see: https://www.water-law.com/ninth-circuit-upholds-groundwater-conduit-theory/. Like the Public Trust Doctrine in Audubon, the Clean Water Act has begun to seep into aquifers as courts attempt to wrestle with modern hydrogeological science.

            Will these rules seep into aquifer pore spaces as well? As discussed in previous blog posts, California courts are currently deciding if aquifer pore spaces are public or private property. (See https://www.water-law.com/who-owns-an-aquifer/). The Control Board decision adds another layer to the aquifer questions in California: Is there a public trust aspect to aquifer pore spaces that potentially hold (or held) groundwater? Or does the doctrine remain confined to the groundwater alone? Keeping the doctrine out of the pore spaces would be difficult, as aquifers are complex systems of transresources. (Transresource systems are interconnected, yet distinct, resources in a dynamic relationship, see https://www.water-law.com/new-associate-attorney-jakob-wiley-defends-collective-aquifer-governance-agreements/.) Scientifically, aquifers and groundwater are in a constant dynamic relationship. The legal question remains open whether aquifer pore spaces are public, like water, or private, like the land and geological materials that make up aquifers.

            As the Public Trust Doctrine sinks into the aquifer, California courts and agencies may face pressure to implement “backdoor conjunctive management” through litigation and planning for Groundwater Sustainability Plans related to the Public Trust Doctrine. Groundwater Sustainability Agencies in California will likely have to take the Public Trust Doctrine into account as they develop and review Groundwater Sustainability Plans and make land use decisions for groundwater development. (See https://californiawaterblog.com/2018/10/07/the-public-trust-and-sgma/ ). While never adopting a groundwater code or conjunctive management regulations, California may then begin to regulate surface water and groundwater as a connected resource.

Make sure to stay tuned to Schroeder Law Offices’ Water Blog for more news that may affect you!

On October 23, 2018, President Trump signed America’s Water Infrastructure Act (“AWIA”), also known as the Water Resource Development Act, into law. This bipartisan bill, which previously passed the House of Representatives on September 13, 2018 and the Senate on October 10, 2018, aims to improve dams, levees, ports, and waterways throughout the United States. It also amends the Safe Water Drinking and allocates funds toward more efficient and sustainable water quality control and management, particularly in underserved communities.

As its name might suggest, one of AWIA’s main goals is to improve America’s water systems. Under AWIA, the U.S. Army Corps of Engineers will receive around $3.7 billion to plan, study, and develop water projects to alleviate strain on existing infrastructure. In the Northwest, the Port of Seattle is specifically slated to undergo construction to improve navigation channels, as are several other key ports around the United States. AWIA also has specific provisions that focus on flood protection measures on the Snake River and levee improvements in Clatsop County, Oregon, among others.

One of the most notable aspects of AWIA is how it addresses the ongoing water shortages in Northern California/Southern Oregon’s Klamath Basin. AWIA provides a much-needed $10 million annuity to the Bureau of Reclamation to address ongoing water issues in the Klamath Basin, and provides avenues for farmers to make use of Klamath Project canals to deliver water to their farms. AWIA also focuses on increasing efficiency and sustainability of hydropower and delivery of affordable electricity to those same farmers.

Stay tuned to Schroeder Law Offices’ blog for more updates on AWIA’s progress and impacts on water in the Northwest and the United States!

On July 31, 2018, Bloomberg released an interactive series of maps demonstrating the breakdown of land use in the United States. The article, which can be found here, provides an in-depth look at the ways in which we utilize the nearly 2 billion acres of land in the contiguous United States.

The United States is a huge country, ranking third in the world in both land mass and population. However, the vast majority remains uninhabited. Only around 70 million cumulative acres are considered “urban” land. Another 50 million-or-so acres qualify as “rural residential” land. So, what do we do with the remaining 94%? First and foremost, we farm.

Between pasture, rangeland, and cropland, over half of America’s total acreage is used for agriculture. As shown in the Bloomberg maps, if all the grazing land in the United States were laid out side-by-side, it would cover nearly all of the western states. Additionally, over 391 million acres throughout the country are used for growing commercial and consumable crops.

It is unsurprising, then, that the United States Department of Agriculture (“USDA”) estimates that over 80% of water in the US is used for agricultural purposes. When the proportion of agricultural land is compared to the proportion of agricultural water, the ratio makes sense.

The Bloomberg maps offer a fascinating breakdown of the way our country as a whole makes use of its space and, by extension, its water. Stay tuned to Schroeder Law Offices’ blog for more water use facts!

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (“agencies”)  issued a supplemental notice of proposed rulemaking to seek additional comments on the repeal of the 2015 “waters of the United States” rule under the Clean Water Act (“2015 WOTUS Rule”).

In July 2017, the agencies first issued a notice of a proposed rulemaking to repeal the 2015 WOTUS Rule. On February 6, 2018, the agencies published a final rule in the Federal Register adding an applicability date of February 6, 2020 to the 2015 WOTUS Rule, but at that time the agencies did not repeal the 2015 WOTUS Rule. The applicability date of February 6, 2020, makes it such that the pre-2015 regulatory definition of waters of the United States will be in effect until February 6, 2020 or until the 2015 WOTUS Rule is repealed. For additional background, see Schroeder Law Offices blog post, available here.

The agencies issued the supplemental notice to provide the public an opportunity to comment on additional agency considerations to support the repeal of the 2015 WOTUS Rule that were not discussed in the July 2017 notice of proposed rulemaking. The supplemental notice also aims to clarify that the agencies’ July 2017 proposal would completely and permanently repeal the 2015 WOTUS Rule in its entirety, replacing it with the pre-2015 regulatory definition.[1]

The supplemental notice also provides an additional comment period for interested parties to consider new factors and reasoning the agencies recently published as further support for the agencies’ decision to consider repealing the 2015 WOTUS Rule.[2] The additional information and comment period provided by the supplemental notice may also be designed to strengthen the July 2017 rulemaking process as any final rule will inevitably be challenged in a lawsuit.[3]

While the pre-2015 waters of the United States regulatory definition is in effect, the agencies will draft a new regulatory framework to define “waters of the United States.” The agencies will then publish a proposed rulemaking in the Federal Register to adopt a new definition.[4]

The public has 30 days to comment on the supplemental notice of proposed rulemaking. The comment period closes August 13, 2018.

[1] EPA New Release, EPA and Army Seek Additional Public Comment on ‘Waters of the U.S.’ Repeal (June 29, 2018) https://www.epa.gov/newsreleases/epa-and-army-seek-additional-public-comment-waters-us-repeal.

[2] Environmental Protection Agency, Definition of Waters of the United States-Recodification of Preexisting Rule, 83 Fed. Reg. 32,227 (July 12, 2018) https://www.regulations.gov/document?D=EPA-HQ-OW-2017-0203-15104.

[3] Juan Carlos Rodriguez, EPA, Corps Expand Legal Case Against Obama Water Rule, Law360 (June 29, 2018) available at https://www.law360.com/articles/1059064/epa-corps-expand-legal-case-against-obama-water-rule.

[4] EPA, Waters of the United States (WOTUS) Rulemaking, https://www.epa.gov/wotus-rule/step-two-revise.

On July 11 and 12, 2018, attorney Laura Schroeder and paralegal Rachelq Harman travelled to Caldwell and Twin Falls, Idaho, respectively, for the Idaho Rural Water Association’s (“IRWA”) annual Water Law to YOU Road Show to educate water users and managers all about their municipal water rights. The 6 hour classes discussed the basics of owning, maintaining, and utilizing water rights, along with tips on avoiding potential associated issues such as easement disputes and involuntary forfeiture. The classes also touched on recent developments in Idaho water law, and the status of the State’s multiple ongoing adjudications.

IRWA hosted these presentations that were offered as continuing education credits to satisfy both drinking water and wastewater CEU requirements. Some attendees also planned to seek real estate and/or attorney CE credits for those professional licenses. Attendees came from a variety of backgrounds, including ditch association managers, wastewater treatment operators, and even fellow water law attorneys!

Laura Schroeder’s new class incorporated additional information related to Idaho Department of Environmental Quality’s (“IDEP”) assumption of Idaho’s water quality program from the Environmental Protection Agency (“EPA”). Due to this recent development and the continuing efforts of the Idaho Department of Water Resources (“IDWR”) on the north Idaho adjudications, the class’s focus was expanded from water rights basics. Active participation from students in each session made each presentation unique, and allowed a focus on material of specific relevance and interest to each group.

While this year’s Road Show has come to an end, there are plenty of upcoming opportunities to brush up on your water rights education. Check out Schroeder Law Office’s events page to learn where you can find us next, and stay tuned to Schroeder Law Offices’ blog for more information on upcoming events and water law developments!

For over half a century, the question of how to conserve and replenish water in Idaho’s largest aquifer, the Eastern Snake Plain Aquifer (ESPA), has been on the collective minds of the state’s water users. Serious droughts in the 1990s increased pressure on the ESPA resource, and preliminary recharge efforts were unsuccessful. Finally, in 2009, the ESPA Comprehensive Aquifer Management Plan, otherwise known as CAMP, was signed into law. CAMP’s goal is to annually recharge 100,000 acre feet (af) during the first ten years of the plan’s implementation, followed by 250,000 af per year thereafter.

The recharge comes from a combination of sources. The Idaho Department of Water Resources (IDWR) also supports canal companies and irrigation districts recharge projects, rotations and efficiency reductions.

The 100,000 af goal was not quite reached in the first few years. Recharge was roughly 75,000 af in both the 2014-2015 and 2015-2016 seasons. However, the 2016-2017 saw 317,000 af returned to the ESPA, far exceeding the 100,000 af goal. The 2017-2018 season is shaping up to be even better. Over 350,000 af have already been replenished.

ESPA’s recharge success is good news for the residents of southern and eastern Idaho, and Idaho in general, as roughly 25% of Idaho’s economy is dependent upon agricultural output from the region. Unfortunately, CAMP’s success in the ESPA has not been matched by similar programs throughout the state and region. The Rathdrum Prairie Aquifer (RPA) in the northern part of the state, which is responsible for roughly 8% of Idaho’s production of goods and services, has a CAMP program in place. However, the RPA has not been nearly as successful as the ESPA at achieving substantial recharge. Another CAMP program has been proposed for the Treasure Valley, but has been delayed due to ongoing discussion between legislators and constituents.

In Washington, the Odessa Groundwater Replacement Program (OGWRP) was implemented to reintroduce water back into the Odessa Aquifer. Several initiatives under the umbrella of this program have been enacted, and have had reasonable success. However, efforts have focused more on limiting usage of the aquifer rather than reintroducing water back into it. Oregon has also taken steps to encourage recharging of its aquifers. However, as illustrated by the attempts in the Umatilla Basin, these programs have struggled to achieve significant recharge.

CAMP’s success did not come overnight. As with any major experimental project, it took decades of planning, communication, and compromise to achieve the ESPA’s level of recharge. Nonetheless, the potential for aquifer recharge demonstrated is inspiring, and will hopefully pave the way for similar projects throughout the West.

Stay tuned to Schroeder Law Offices’ Water Law Blog for more news and events!

On February 1, 2018, the Ninth Circuit Court of Appeals upheld the “groundwater conduit theory,” whereby a discharge of pollutants into groundwater that is fairly traceable to a navigable surface water is the functional equivalent of a discharge directly into the navigable water body for the purpose of regulation under the Clean Water Act. This argument has been proffered many times in the past, but prior to this case this theory had, at best, narrow and limited success. The full Ninth Circuit case is available here.

The case involved the County of Maui, Hawaii and its wastewater treatment plant. The plant uses four wells as its primary means of disposing effluent into groundwater and the Pacific Ocean. The County injects three to five million gallons of treated wastewater per day into its wells, and, according to the County’s expert, when the County injects 2.8 million gallons of effluent per day, the amount of effluent that reaches the ocean is 3,456 gallons per meter of coastline per day. The Court stated this is “roughly the equivalent of installing a permanently-running garden hose at every meter along the 800 meters of coastline.”

Discharges of pollutants may be authorized by permit under the Clean Water Act’s National Pollutant Discharge Elimination System (“NPDES”). Jurisdiction under the Clean Water Act requires three things: 1) addition of a pollutant 2) to a navigable water 3) from a point source. This case focuses on the third requirement. Clean Water Act cases hold that a point source is a discernible, confined, and discrete conveyance, which in a lot of cases really means a pipe, ditch, or canal.

Wells do not directly connect to navigable water (in this case, the Pacific Ocean). Instead, the water injected into wells must travel through groundwater to reach the ocean. In 2013, the EPA, Army Corps of Engineers, Hawaii Department of Health, and University of Hawaii conducted what is called a “tracer dye study.” Essentially, they put dye into the wells and then monitored the ocean for the dye. At its conclusion, the study found a hydraulic connection between two of the wells and the ocean.

The Ninth Circuit concluded that point source discharges that travel indirectly through groundwater to a navigable water, is a violation of the Clean Water Act if the discharger does not have a permit. The Court reasoned that “this case is about preventing the County from doing indirectly what it cannot do directly.” Since the County could not build a waste pipe that emptied directly into the ocean without a permit, it could do so indirectly through its wells to avoid the requirements of the Clean Water Act. 

There are currently cases before the Fourth and Sixth Circuits which also implicate the groundwater conduit theory. If the holding by the Ninth Circuit is adopted by other Circuits, it will represent a change for the NPDES permitting program and regulation under the Clean Water Act. On the other hand, if a split develops in the Circuits, it may lead to litigation in the United States Supreme Court.

Stay tuned to Schroeder Law Offices’ Water Law Blog for more water news!

This article was drafted with the assistance of Law Clerk Derek Gauthier, a student at Lewis & Clark Law School.

In 2015, the Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) issued a joint administrative rule, the “WOTUS Rule,” attempting to define the statutory term “waters of the United States” within the Clean Water Act (“CWA”) in order to more clearly define the agencies’ jurisdiction. Schroeder Law Offices summarized the background and scope of the WOTUS Rule in a 2015 blog. The WOTUS Rule was stayed in 2015. Three year later, and after a ruling from the Supreme Court of the United States, litigation over the WOTUS Rule continues. 

On January 22, 2018, the United States Supreme Court issued its unanimous opinion, written by Justice Sotomayor, which settled the jurisdictional question of where challenges to the WOTUS Rule must be filed. The Court held that challenges to the WOTUS Rule must occur in federal district court rather than courts of appeals. The case was remanded to the Sixth Circuit and dismissed for lack of jurisdiction.

This decision by the Supreme Court will likely prolong litigation on the merits of the WOTUS Rule because a decision by a district court for either party is likely to be appealed. Environmentalists have applauded the proposed changes in the rule, while coalitions like the American Farm Bureau Federation and American Petroleum Institute have said the rule will stifle economic growth and add burdensome regulation on farmers and business owners because of expansion of CWA jurisdiction.

On July 27, 2017 the EPA and Corps published a notice of a new proposed rulemaking in the Federal Register. The agencies proposed to replace the stayed 2015 WOTUS Rule with their pre-2015 regulatory procedure. The agencies solicited public comment on the proposed procedure, although, making clear they did not seek public comment on the substance of the pre-2015 rule.

On February 6, 2018, the agencies published the final rule in the Federal Register. The final rule suspends the applicability of the 2015 WOTUS Rule until February 6, 2020. The agencies assert that the suspension of the rule gives agencies the time needed to reconsider the regulatory definition of “waters of the United States.” As reported by Capital Press, the same day the agencies published their final rule a lawsuit was filed by the Attorneys General of New York, California, Connecticut, Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, Vermont, Washington and the District of Columbia in the Southern District of New York. Another lawsuit was filed by numerous environmental groups in Charleston, South Carolina District Court. Both lawsuits challenge the two-year delay in applicability of the WOTUS Rule.

The attorneys general and environmental groups both take the same positions on two issues in their complaints. First, the parties allege the agencies failed to provide meaningful opportunity for public comment in violation of the Administrative Procedure Act (“APA”) because the agencies solicited comments solely on the procedure of the rule, proscribing comment on the substance of the pre-2015 rule. Second, the parties allege the agencies failed to consider all the relevant issues and offer a rational explanation for the suspension of applicability rule, another alleged violation of the APA.

The attorneys general and environmental groups differ in their last claim, however. The attorneys general claim that the CWA does not give the agencies authority to suspend the WOTUS Rule after its effective date passed. The environmental groups claim the agencies violated the APA by failing to publish the pre-2015 rule in the Code of Federal Regulations.

Stay tuned as Schroeder Law Offices brings you updates!

This article was drafted with the assistance of Law Clerk Derek Gauthier, a student at Lewis & Clark Law School.

Co-Authored By: Attorney Therese Ure & Lisa Mae Gage

In August 2015 the United State Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps”) put their stamp of approval on the Waters of the United States (“WOTUS”) final rule. The WOTUS rule significantly expanded the definition of “waters of the United States” under the Clean Water Act, granting federal regulatory control over virtually all waters in the United States. Many groups opposed this rule, arguing that it expands federal jurisdiction, resulting in the imposition of burdensome requirements on agricultural producers.

On February 28, 2017, President Donald Trump signed an executive order directing the Administrator of the EPA and the Assistant Secretary of the Army for Civil Works to review the WOTUS rule to ensure the nation’s navigable waters are protected, as well as to promote economic growth and show due regard for the roles of Congress and the States. See https://www.whitehouse.gov/the-press-office/2017/02/28/presidential-executive-order-restoring-rule-law-federalism-and-economic.

President Trump also directed the administrators, along with the heads of all executive departments and agencies, to consider interpreting the term “navigable waters” as it is defined in 33 U.S.C. 1362(7), and consistent with the opinion of late Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006). Considering these interpretations, one might construe “navigable waters” as waters in the United States, including the territorial seas, that are “navigable in fact” or readily able of being so.

This executive order was preceded by a House Resolution . See https://www.congress.gov/bill/115th-congress/house-resolution/152/text. The Resolution states WOTUS should be withdrawn or vacated as the EPA and Corps did not follow proper procedural steps and claimed expansive jurisdiction that infringes upon State authority.

Several agricultural groups are strongly supporting the House Resolution and the Executive Order. As water is a valuable resource to all, regulation upon it must be closely scrutinized and controlled. According to the agricultural community, President Trump’s executive order and the House Resolution regarding WOTUS is a welcomed relief. 

The Clean Water Act is an issue of gathering significance with the Environmental Protection Agency and adoption of a newly defined “waters of the United States” (“WOTUS”), wherein civil and criminal penalties can attach if pollutant is discharged into jurisdictional waters. Thus, whether water is defined as “jurisdictional” becomes an important significance. On May 31, 2016, the U.S. Supreme Court issued a ruling in United States Army Corps of Engineers v. Hawkes Co., Inc., et al., regarding Clean Water Act (“CWA”) application and the regulatory jurisdiction of the United States over water resources.

In the lawsuit, three peat mining companies sought a permit from the Army Corps of Engineers to discharge certain material into a wetland. The companies sought a “jurisdictional determination” from the Army Corps of Engineers stating that the property was jurisdictional under the Clean Water Act. Disagreeing with the determination, the companies sought review of the determination under the Administrative Procedure Act, appealing the determination to Federal District Court. The Federal District Court dismissed the matter, holding that a jurisdictional determination is not a “final agency action” allowing the right of an appeal to the Court.

Upon review by the U.S. Supreme Court, the Court overturned the lower court, and found that a jurisdictional determination is in fact a final agency action and judicially reviewable. While this ruling does not affect the current stay of the newly adopted rule governing the definition of WOTUS, it does shed light on procedure and available remedies should water be found to be jurisdictional, where a permit application disagrees.

This decision is overall good news for those seeking to comply under the Clean Water Act, and where the EPA and Corps may overstep their bounds in finding certain water to be jurisdictional. Any determination of jurisdiction is reviewable in Federal Court, where an individual can properly assert and provide evidence that certain water is in fact not jurisdictional. In any event, this decision sparks the beginning of likely a long line of cases pending around the country relating to the CWA’s jurisdictional reach.

For the full text of the case, please visit http://www.supremecourt.gov/opinions/15pdf/15-290_6k37.pdf.

On November 3, 2015, the United States Senate voted on legislation meant to repeal the federal regulation re-defining “Waters of the United States” (“WOTUS”). WOTUS sets EPA’s jurisdiction, and thereby how far the EPA can reach to regulate various waterways. The regulation increases federal jurisdiction over water within the United States, which many believe will increase federal oversight over certain water sources, especially that used for agriculture. The primary concern is that water use that was once exempt, will now fall under federal jurisdiction requiring new permitting and regulatory procedure, adding additional costs to use of this “jurisdictional” water. Through a bipartisan vote, with 57 senators voting for, and 41 against, the legislation failed to meet the 60 vote requirement, effectively scrapping the Bill.

On November 6, 2015, in a follow-up attempt to repeal with “WOTUS” Rule, Sen. Joni Ernst from Iowa sponsored a joint resolution of disapproval of the Rule. With the joint resolution passing in the Senate, Sen. Ernst stated, “Today’s passage to scrap the expanded WOTUS rule is a major win for our hardworking farmers, ranchers, manufacturers, and small businesses who are continuously ignored by the EPA. It is abundantly clear that the WOTUS rule is ill-conceived and breeds uncertainty, confusion, and more red tape that threatens the livelihoods of many in Iowa and across the country.” The House will now consider the joint resolution, however, President Obama has expressed his intent to veto any law that seeks to repeal or alter the current WOTUS rule.

In the meantime, legal battles over WOTUS continue, as now more than 30 states have filed lawsuits against the EPA seeking to stay the Rule’s implementation. The effect of WOTUS remains stayed for a number of states until the EPA works through the legal challenges.

Update:

Since the November 6, 2015 vote by the United States Senate in support of a Joint Resolution (S.J. Res. 22) to set aside the EPA’s new rule under the CWA concerning “Waters of the United States” on January 6, 2016, the United States House of Representatives equally voted in support of the Joint Resolution. This vote effectively sent the matter to the President, and as predicted, on January 19, 2016, President Obama vetoed the Joint Resolution, his ninth veto since taking office.

In the President’s press release regarding his veto of the Joint Resolution, he stated that, “The rule, which is a product of extensive public involvement and years of work, is critical to our efforts to protect the Nation’s waters and keep them clean, is responsive to calls for rulemaking from the Congress, industry, and community stakeholders, and is consistent with decisions of the United States Supreme Court.” President Obama went on to state that “Pollution from upstream sources ends up in the rivers, lakes, reservoirs, and coastal waters near which most Americans live and on which they depend for their drinking water, recreation, and economic development.”

Senator Joni Ernst, a Republican from Iowa who sponsored the Resolution, stated in response that “This rule is not about clean water. Rather, it is about how much authority the federal government and unelected bureaucrats should have to regulate what is done on private land.”

The President’s veto, and the Rule’s implementation comes as a large regulatory hurdle many farmers and ranchers will have to navigate, with the potential for additional permitting and fees to operate in and around private water sources. While the Rule does exempt irrigation waters under certain circumstances, many questions remain as to the reach the Rule will have. While the Rule continues to be implemented, it remains stayed pending further Court action.