Alexandra Kleeman Discusses Recent Opinion that Shines a Light on Importance of Definition of ‘Waters of the United States’

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Environmental and real estate partner Alexandra Kleeman contributed an article to Reuters Legal News titled “Recent opinion highlights importance of definition of ‘water,’” published September 23, 2021. The article discusses a recent U.S. District Court for the District of Arizona opinion that vacated the 2020 Navigable Waters Protection Rule (NWPR), which was developed and released by the Environmental Protection Agency (EPA) under the Trump Administration.

When the Clean Water Act (CWA) was enacted in 1972 to regulate the discharge of contaminants to “Waters of the United States,” it left definition of that term up to the agencies that would be subject to its requirements. Determining which waters are defined as “Waters of the United States” is critical for environmentally sensitive areas, subjecting them to greater regulation by EPA and the U.S. Army Corp of Engineers (Corps). Kleeman notes that the increased regulation can also make development more difficult, potentially limit activities on properties next to the regulated waters and impose greater scrutiny of releases from industrial operations.

In 1986, the Corps and EPA published a definition of “Waters,” followed by a pair of U.S. Supreme Court decisions that sought to refine it. In 2015, the Obama Administration enacted the Clean Water Rule, which expanded protections for tributaries and ephemeral waters — seasonally dry features that only contain water due to precipitation — but the 6th U.S. Circuit Court of Appeals issued a nationwide stay of the rule, halting its implementation.

NWPR narrowed the scope of waterbodies subject to federal regulation, resulting in far fewer bodies of water protected under the CWA, especially in the southwest, where there are many ephemeral features.

According to Kleeman, much uncertainty surrounds the District Court’s decision that appears to vacate the NWPR nationwide — if it has the actual authority to vacate the rule beyond its jurisdiction, as well as which definition of “Waters of the United States” will prevail until EPA and the Corps issue an updated rule.

Kleeman concludes: “Although the 2015 Clean Water Rule was repealed under Trump, the Pasqua court has requested briefing on whether it should vacate that repeal, which would require EPA and the Corps to revert back to the 2015 rule rather than the original 1986 definition. The Pasqua decision may also increase challenges to permits issued to projects under the NWPR, which will lead to delay and additional costs.”

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Alexandra Kleeman
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