In June of 2015, the Obama administration introduced new Clean Water Standards impacting many states, including the Commonwealth of Pennsylvania, through Executive Order No. 13778. These new regulations have been the subject of litigation and scrutiny from both environmental groups and industry organizations for the past several years. Additionally, as a result of various federal appellate rulings, the regulatory scheme has been implemented in some states but not others. This blog will discuss the history of the rule and the implications that the rule will have on Pennsylvania environmental policy.
The Clean Water Rule dates back to the United States Supreme Court decision in Rapanos v. United States, 547 U.S. 715 (2006). The case centered around a dispute between the Environmental Protection Agency (“EPA”) and Michigan real estate developer, John A. Rapanos. In the early 1980s, Rapanos was sued by the EPA for not properly obtaining the permits needed to develop Michigan wetlands. The developer had filled several acres of these wetlands with sand in hopes of attracting investors to develop the area into a shopping mall. After decades of litigation the Supreme Court finally granted certiorari in 2006.
Writing on behalf of four justices in a plurality decision, Justice Scalia articulated two critical points of law. First, Scalia concluded the phrase “navigable waters” in the Clean Water Act, does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. Second, Scalia opined that dredged or fill material, which is typically deposited into wetlands for development purposes does not normally wash downstream when deposited in upstream isolated wetlands, and thus does not normally constitute an “addition to navigable waters,” within the meaning of permit requirements of the Clean Water Act. Due to the plurality decision, the precise definition of the term “waters” remained vague and undecided and was not adopted by circuit courts.
Due to this uncertainty, the EPA requested that the Obama Administration provide further guidance regarding the definition of “navigable waterways” in the Clean Water Act. Waterbodies in the western portion of the country, in particular, created even more confusion due to rainfall uncertainty from year to year. Using Justice Kennedy’s concurring opinion in Rapanos, the Obama Administration provided new guidance to the EPA known as the Clean Water Rule. The Kennedy concurrence propounded a broader definition of “navigable water ways,” leading to the inclusion of smaller bodies of water that would not have been included under the Scalia opinion. Thus, new Clean Water Rule expanded the definition of “ navigable water ways” and required new permits for development in these expanded areas.
This however, did not settle the “navigable water way” debate. At the beginning of the Trump Administration, in the interest of assisting farmers and development groups, the Administration amended the Clean Water Rule to correspond with the narrower Scalia definition articulated in Rapanos. This spurred further litigation, and various environmental groups filed requests for injunctions in an effort to block the Trump Administration’s proposed regulatory modifications.
The result of this litigation has created various regions of administrative law where the Obama Administration’s Clean Water Rule is in effect and others where it is not. Currently, injunctions have been granted against the Clean Water Rule by federal district courts in North Dakota and Georgia which means that the rules do not apply in 24 states. However, due to a decision by a South Carolina federal district judge earlier this year, the Clean Water Rule is in effect in the 25 remaining states, including Pennsylvania, due to his injunctive order which included the waterways of the Commonwealth.
In Pennsylvania, the Clean Water Rule is currently enforceable and affects a broad range of industries including, mining, agriculture, and construction. These industries will require additional permitting and approval from both the state and the EPA when conducting activities near bodies of water identified under the broader definitions of the Clean Water Rule. Environmental groups in Pennsylvania hail the Clean Water Rule as an important milestone in protecting water quality, as well as wildlife and endangered species. Once again, due to various federal circuit splits, however, the definition of “navigable waterways” may once again need to be conclusively clarified by the United States Supreme Court.
References
• 40 C.F.R. § 122.2
• Rapanos v. United States, 547 U.S. 715, 715 (2006).
• 35.6 Navigable Waters, 2018 WL 792935
• Abigail M. Jones, Clean Water Rule Revived in PA, Protecting Our Headwater Streams and Wetlands, (August. 22, 2018), https://www.pennfuture.org/Blog-Item-Clean-Water-Rule-Revived-in-PA-Protecting-Our-Headwater-Streams-and-Wetlands.