The Clean Water Act’s extension of what waters it attempts to regulate is leaves WOTUS a confusing legacy. Does it apply to wetlands? If so, what if wetlands stand alone and don’t adjoin navigable waterways? The courts have been adjudicating questions like these for year. But earlier this year the US Supreme Court gave a definitive answer – for now.

What Happened?

There is no denying the positive changes that the Clean Water Act has rendered as once flammable waters again being fishable, boatable, and even swimmable. Even so, the definition of “waters of the United States,” that defines the reach of the federal government’s regulation of water, is controversial. On May 25, 2023, the U.S. Supreme Court decided in Sackett v. Environmental Protection Agency (“EPA”)how “waters” are to be defined for purposes of the CWA.

Background

To understand Sackett, we must begin with looking at Rapanos v. United States, 547 U.S. 715 (2006). Rapanos, found there are two tests to define “waters of the United States.”

• The “Plurality Test,” a two-prong test, that defines water of the United States as “(1) a relatively permanent body of water (2) connected to traditional interstate navigable waters.”
• The broader “significant nexus test.” Under this test “the wetlands, either alone or in combination with similarly situated lands, significantly affect the chemical, physical and biological integrity of the waters understood as “navigable,” are considered among the “waters of the US.”

The Sackett Decision

These two conflicting tests did not resolve the issue.

But now the May 2023, Supreme Court decision determined that the “Waters of the United States” extend “only to geographical features that are described in ordinary parlance as ‘stream, oceans, rivers, and lakes’ and to adjacent wetlands that are ‘indistinguishable’ from bodies of water due to a ‘continuous surface connection’.” Sackett v. EPA, 143 S. Ct. 1322, 1336 (2023). This decision adopted the plurality test from Rapanos reasoning that the significant-nexus text could grant endless jurisdiction and importantly interfere with State jurisdiction. 

WOTUS as a Confusing Legacy

The Supreme Court’s decision admitted there is obvious need for exceptions to it’s bright line rule such as when there are interruptions in surface connection because of low tide or dry spells to disrupt “continuous surface connection.”  Thus, it is evident that wetlands have not seen their last day in court.

As an ever evolving body, water law can be a confusing field. Here at Schroeder Law Offices, we help our clients by finding answers and making the complex appear simple. If you have any questions about how this affects your water rights, please contact us at (503) 281-4100 or m.jones@water-law.com.

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!

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!

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.

On June 29, 2015 the Environmental Protection Agency (“EPA”) published a new rule under the Clean Water Act, re-defining “Waters of the United States,” and sought to expand federal jurisdiction over certain water sources. The new rule was set to go into effect on August 28, 2015. Due to the implications and potential effect the rule may have on private and public interests, numerous lawsuits were filed challenging the regulation. Primarily, a lawsuit was filed in the Federal District Court of North Dakota, wherein thirteen states joined the lawsuit seeking to enjoin the rule’s implementation. On August 27, 2015, the North Dakota District Court issued an order granting the request for a preliminary injunction.

The thirteen states involved in the lawsuit include Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming. The EPA released a statement stating that “[u]nder the order issued by the District Court of North Dakota, the parties that obtained the preliminary injunction are not subject to the new rule, and instead continue to be subject to the prior regulation.” Therefore, until the Court rules on the issue, the EPA considers the injunction a bar to implementation of rule in Nevada, and the other thirteen states involved in the case.

For Nevada Governor Brian Sandoval’s response, please visit http://gov.nv.gov/News-and-Media/Press/2015/Sandoval-Encouraged-by-District-Court-Granting-Nevada_s-Request-for-Injunction/.

Professor Michael Blumm is a noted scholar and professor at Lewis & Clark Law School. I had the privilege of attending more than one of his classes during my time there. Therefore, I was somewhat surprised when I read his guest editorial in the Oregonian and letter to the Oswego Lake Work Group regarding public access to Oswego Lake. Links to the documents are provided here:

http://www.oregonlive.com/opinion/index.ssf/2012/01/public_access_struggle_citizen.html

http://welovelakeoswego.com/wp-content/uploads/2012/01/Michael-Blumm-Letter_01.01.12.pdf

As a fly fisherman, the public’s use of navigable waterways has always been an area of special interest to me. More access equates to more fish. To me, an analysis of the public’s right of access to Oswego Lake is far more complex than Professor Blumm indicates.

First, there is a difference between a) the public’s right of navigation and b) the public’s right to cross private land for purpose of reaching navigable water. While the Oregon Admission Act of 1859 does in fact state that “all the navigable waters of said State, shall be common highways and forever free,” the Act makes no mention of a citizen’s entitlement to cross private land for purposes of reaching navigable waters.

In his January 3, 2012 comments, Professor Blumm points to an 1869 case, Weise v. Smith to suggest that such a right does in fact exist. There, the Supreme Court condoned the use of private uplands to construct booms necessary to move logs downstream through a navigable waterway. Professor Blumm omits reference, however, to subsequent cases that refute his bold conclusions. For example, in Lebanon Lumber Co. v. Leonard (1913), the Court determined that “[w]here the bed and banks of the stream are owned by the riparian proprietor, the navigability of the stream does not give to the navigator a right of way on the land.” Moreover, in Guilliams Et Al. v. Beaver Lake (1918), one of the very cases relied upon by Professor Blumm, the Supreme Court refused to find that the right of navigation carries a concomitant right of egress across adjacent private lands.

Second, Professor Blumm’s editorial characterizes access to Cannon Beach as a similar example of how the public holds access rights to publically held resources such as Oswego Lake. I find use of the Cannon Beach analogy troubling. I suspect Professor Blumm is referring to the Supreme Court’s landmark decision in State ex rel. Thornton v. Hay (1969). There, the court determined that the public enjoys a right of access across privately owned “dry sand” portions of the beach. To arrive at this conclusion, the Supreme Court reasoned that the legal doctrine of “custom” was applicable due to the public’s time immemorial use of the dry-sand area to reach the ocean – a use dating back to aboriginal natives. Notably, the Supreme Court in Thornton declined the opportunity to base its ruling upon navigability doctrines. In the case of Oswego Lake, the Thornton legal analysis seems completely inapplicable given the lake’s history and artificial traits.

Third, it is my understanding that substantial water is retained in Oswego Lake by virtue of dam. Professor Blumm’s conclusions therefore presume that a servitude, in the public’s favor, has silently arisen over these private lands by virtue of the water’s artificial placement there. While the question has been litigated elsewhere with varying results, I am unaware of any cases in Oregon that support an unqualified public right of navigation over private lands underlying artificially impounded water. Therefore, Professor Blumm’s conclusions appear to overlook a legal question that must first be reconciled prior to opining on public access to Oswego Lake.

Finally, it seems that Professor Blumm’s position would be substantially bolstered if the City of Lake Oswego owns unencumbered land abutting Oswego Lake. If so, a publicly owned right of way might then exist over uplands for purposes of reaching the surface water of the Lake. Because this consideration is so critical – and because Professor Blumm fails to address it – I suspect public access to certain areas of Oswego Lake is enjoyed pursuant to a limited easement rather than fee title ownership of land abutting or underlying the lake. If true, the City would be constrained from enlarging the scope of its swimming easement to include, for example, a boat launch.