Clean Water Act policy could spur widespread disarray

By Hannah Northey | 01/14/2022 01:31 PM EST

Florida wetlands.

Florida wetlands. Jeremy Gordon/Flickr

This story was updated at 8:54 p.m. EST.

The Biden administration last week quietly and abruptly announced that developers can no longer rely on decisions made under a high-profile Trump-era Clean Water Act rule about which waters are federally protected to obtain new permits.

Legal experts say the move could have far-reaching effects throughout the building, mining and agricultural sectors.

At issue is a Jan. 5 post on the Army Corps of Engineers website explaining the agency will “not rely on” an approved “jurisdictional determination” issued under the Trump-era Navigable Waters Protection Rule “in making a new permit decision.”

The announcement applies to "jurisdictional determinations” that the Army Corps makes, good for five years, which pave the way for mining companies, developers and property owners to obtain permits to fill or dredge streams, tributaries, lakes and wetlands, ditches, swales and stormwater ponds. Wetlands and streams that are not given federal protections can be damaged and destroyed forever, along with their abilities to sequester carbon and protect downstream water quality.

Under the Trump administration, developers flocked to the Army Corps to take advantage of the regulatory and permitting regime under the Navigable Waters Protection Rule, which pulled back protections for large numbers of streams and wetlands. The rule was in effect from June 2020 until around August last year, when a federal judge in Arizona vacated it, finding the rule was too flawed to keep in place (Greenwire, Oct. 26, 2021). Notably, some argue the rule is still in effect until EPA completes the regulatory process of replacing the Trump rule with pre-2015 regulations updated to reflect consideration of Supreme Court decisions (E&E News PM, Nov. 18, 2021).

When asked about the Army Corps’ announcement, EPA spokesperson Timothy Carroll in an email said the agency continues to work closely with the corps on issues related to geographic jurisdiction, including its ongoing rulemaking. He also pointed to the U.S. District Court for the District of Arizona’s decision to vacate the Navigable Waters Protection Rule, as well as a second court in New Mexico vacating the rule and remanding it in September.

"Five other courts have simply remanded the rule to the agencies for reconsideration, as the agencies requested," he wrote. "In light of the District Court vacaturs, the agencies halted implementation of the Navigable Waters Protection Rule in September 2021 and are interpreting ‘waters of the United States’ consistent with the pre-2015 regulatory regime."

While a joint EPA and Army Corps database shows how many waters were reviewed under the Trump-era rule, as well as what was deemed a “waters of the U.S.,” or WOTUS — meaning waters that fall under federal protection — it’s not clear how many of those entities then sought and secured permits from the Army Corps or waited.

Going forward, the Army Corps in its announcement explains that it will make new permit decisions based on the pre-2015 regulatory regime — not the Trump rule — and that the agency will talk to applicants about any pending or future permit action that relies on an approved jurisdictional determination made under the Trump rule. Specifically, the Army Corps said they would talk to applicants about whether they want to receive a new determination based on pre-2015 regulations or proceed with a preliminary determination or none at all, according to the post.

Doug Garman, a spokesman for the Army Corps, confirmed the agency’s policy as outlined in the Jan. 5 post, and said that until a new definition of "waters of the U.S." or WOTUS, is promulgated, the agency will make decisions on new regulatory actions pursuant to the "currently applicable regulatory regime," or the pre-2015 rules. The spokesman also clarified that all approved jurisdictional determinations made under the Trump-era rule would not be rescinded.

When asked about the effect of the Jan. 5 policy, Garman said the agency couldn’t comment as it would be speculative.

Ellen Gilinsky, a former wetlands consultant and associate deputy assistant administrator for water at EPA under the Obama administration, said the Army Corps’ decision could affect anyone who had an approved jurisdictional determination under the Trump rule but figured they had five years to apply for a permit using that decision.

Developers that fit into that bucket, she said, are going to be surprised when they go in for a permit and are told their development plans are going to have to change.

The announced policy, she said, could also affect people who were told they had no jurisdictional areas or WOTUS on their land under the Trump rule. If those developers move forward without a permit and without contacting the Army Corps to check the validity of their approved jurisdictional determination, they may have a Clean Water Act violation that may or may not be caught, she said.

Larry Liebesman, a former Department of Justice trial attorney and senior adviser at Dawson & Associates, a consulting firm that specializes in permitting, agreed and said the Army Corps’ policy “most certainly puts into peril” approved jurisdictional determinations the made under the Trump-era Navigable Waters Protection Rule.

That, in turn, could affect land developers, including builders and aggregate miners, he said, that secured determinations under the Trump rule for long-term planning before seeking a permit, especially because the Trump-era rule excluded ephemeral and isolated waters and wetlands that now receive protection under pre-2015 regulations.

“Because the NWPR excluded ephemeral and isolated waters and wetlands, these companies could avoid the time, delay and expense of the permitting process including [the Endangered Specie Act] and Section 10 compliance for proposed mining in those areas,” said Lieberman.

When asked about how the policy would affect other statutes, Garman with the Army Corps said each statute has different language addressing how and when its requirements apply, and that the agency couldn’t comment.

‘Creates some tension’

As for the direct impact, Liebesman said it will hinge on just how many developers obtained permits after securing jurisdictional determinations under the Navigable Waters Protection Rule.

“You don’t know exactly what the on-the-ground impact is, but you would assume a good number of folks that have long-term plans,” he said.

The National Association of Home Builders, one of the largest trade associations in the nation representing home builders, developers, contractors and associated businesses, in a recent blog called the Jan. 5 announcement a “significant reversal“ of the Army Corps’ policy related to approved jurisdictional determinations being good for five years.

“The proposed changes to WOTUS will have substantial impacts on the ability of small companies and small landowners, which are the backbone of the American economy, to help meet the nation’s ambitious climate and infrastructure goals,” the group wrote.

Others said the Army Corps was facing a tough, no-win situation.

Former EPA Office of Water attorney Mark Ryan said he wasn’t surprised to see the Jan. 5 policy given the Biden administration is taking a different direction on WOTUS and crafting a new definition.

But Ryan said it “clearly creates some tension within the Corps” between following a legal decision and upholding previous decisions.

“A court vacated the [Navigable Waters Protection Rule] as unlawful. How can the [jurisdictional determination] based on an unlawful WOTUS rule still be a good JD?” he said. “On the other hand, those who obtained non-JDs under NWPR should be able to rely on that call by the Corps. It’s a difficult situation for all. No matter what the Corps did here, it would be criticized.”

Liebesman said the decision could put the agency on shaky legal ground given the Army Corps’ precedent of upholding past decisions about jurisdiction.

“In my opinion, this is a legally questionable approach and is contrary to historic corps policy where the corps had honored [administrative jurisdictional determinations] prior to the 2015 and 2020 WOTUS rules irrespective of whether those rules changed the reach of regulated waters under the prior rules,” he said.