September 21, 2021

How Safe is Your WOTUS Harbor?

Posted on September 21, 2021 by Patrick Parenteau

In 2005 the Corps of Engineers adopted a Regulatory Guidance Letter (RGL) providing that an “approved jurisdictional determination” (AJD) “will remain valid for a period of five years, unless new information warrants revision of the determination before the expiration date,” or the District Engineer determines that changing conditions require a more frequent review. The Supreme Court in Hawkes ruled that AJD’s were “final agency actions” subject to judicial review under the Administrative Procedure Act in large part due to this “Safe Harbor” guarantee.

Then came the “Navigable Waters Protection Rule” (NWPR) and the shrunken definition of “waters of the US” (WOTUS). There was considerable speculation about what impact this new rule would have on the scope of the Clean Water Act. Turns out the answer is: Far more than expected.

In a document labeled Memorandum for the Record (“NWPR Memo”) EPA and the Corps evaluated jurisdictional determinations of 40,211 aquatic resources or water features under the NWPR between June 22, 2020 and April 20, 2021 and found that approximately 76% were non-jurisdictional. Not surprisingly the reduction in jurisdiction has been particularly significant in arid states. In New Mexico and Arizona, nearly every one of over 1,500 streams assessed under the NWPR were found to be non-jurisdictional—a significant shift from the status of streams under both the 2015 Clean Water Rule and the predecessor regime under the 1986 WOTUS rule and accompanying guidance following the SWANCC and Rapanos decisions.

Repeal and replacement of the NWPR was a priority item on President Biden’s first Executive Order and accompanying  “hit list” of Trump rules. But the agencies wanted to proceed cautiously starting with a “public outreach and stakeholder engagement” process followed by a two-step rulemaking process. The first would be “foundational rule to restore longstanding protections followed by a second rule that “builds on that regulatory foundation.”

The agencies also opted to leave the NWPR in place pending the outcome of the outreach and rulemaking processes. In concert with this strategy the Department of Justice began filing motions for voluntary remand of the NWPR without vacatur. The South Carolina District Court upheld this approach in South Carolina Coastal Conservation League v Regan

However in Pascua Yaqui Tribe v. EPA the Arizona District Court upended the strategy declaring that the NWPR must be vacated because it involves “fundamental, substantive flaws that cannot be cured without revising or replacing the NWPR’s definition of ‘waters of the United States’.” Pointing to the data contained in the NWPR Memo Judge Marquez found that allowing the NWPR to remain on the books would result in the possibility of “serious environmental harm” and that vacatur would not result in undue disruption because
“the pre-2015 regulatory regime is familiar to the Agencies and industry alike.”

Bowing to Judge Marquez’s ruling the agencies announced that implementation of the NWPR would be halted and that jurisdictional determinations would be based on the pre-2015 regulatory regime “until further notice.”The expectation is that the agencies will propose a new rule before the end of the year.

So, where does all this leave the non-jurisdictional determinations that were based on the now-vacated NWPR? Is the Safe Harbor guarantee still valid? In the NWPR Memo the Corps and EPA identified 333 projects that would have required Section 404 permitting under the CWA prior to the NWPR. One of these is the proposed Rosemont copper mine in the Santa Rita Mountains south of Tucson. The mine site is crisscrossed by a series of streams, washes, springs, and wetlands that the Corps had previously determined were WOTUS under the 2015 Clean Water Rule. But at the request of Hudbay Minerals, the mine proponent, the Corps reevaluated the waters and issued a new AJD in March 2021concluding that none met the requirements of the NWPR.

This about-face triggered an objection from EPA Region IX, which according to news accounts sent the Corps a letter claiming the mine area contains at least five intermittent and perennial  streams that should fall under federal authority because they connect to the Santa Cruz River.

So far, the Corps is sticking with its revised AJD. EPA could invoke the “special case” provision of the 1989 Memorandum of Understanding on the Determination of Geographic Jurisdiction of the Section 404 Program and take over the determination for the Rosemont site in light of the Arizona District Court’s order vacating the NWPR. No word on that yet.

Rosemont could become a test case for the vitality of the Safe Harbor guarantee. Opponents of the mine, which include a coalition of conservation organizations led by the Center for Biological Diversity as well as the Tohono O’odham and Pascua Yaqui tribes, have already filed a series of lawsuits challenging various federal approvals and are poised to challenge the Corps’ March 2021 AJD.

The argument for invalidating the AJD and the Safe Harbor guarantee is that both are void ab initio because they are based on the vacated (and arguably fatally flawed) NWPR. The counterargument would be that Hudbay and by extension other parties holding similar non jurisdictional AJD’s are entitled to rely on the Safe Harbor commitment even if, as expected, the NWPR is replaced with a rule restoring CWA jurisdiction to some yet to be determined extent.

The Supreme Court has recognized that “reliance interests” do come into play when the government reverses policies (See Chief Justice Roberts opinion in the DACA case). However, Hudbay faces a problem proving any injury since it is currently enjoined from commencing construction on the project pending a decision on its appeal to the Ninth Circuit.

Just when you thought things could not get any more interesting in the wacky world of WOTUS.