Legal Blogs and Updates

The Supreme Court of the United States has temporarily reinstated the Trump-era water rule limiting the scope of the Environmental Protection Agency’s enforcement under the Clean Water Act.  The 2020 Navigable Waters Protection Rule provided a new—more narrow—definition of “waters of the United States,” and removed certain restrictions on development on or near U.S. waterbodies or wetlands. The Supreme Court’s decision this week reinstates the 2020 Rule, which is expected to be much less restrictive to businesses than the Biden administration revisions that are anticipated in spring of 2023.

The 2020 Rule redefined the scope of waters federally regulated under the Clean Water Act by interpreting the term “waters of the United States.” Notably, it:

• removed interstate streams as a separate jurisdictional category;
• excluded ephemeral streams (those that flow only in response to precipitation events) and water features; requiring rivers, streams and other natural channels to contribute flow directly or indirectly to a territorial sea or traditional navigable water; and
• excluded wetlands that are not adjacent to another non-wetland jurisdictional water.

While the Biden administration indicated that it intended to revise the rule, a Northern California District Court judge vacated and remanded the 2020 Rule in August 2021. The Ninth Circuit rejected a stay of the decision requested by industry groups. On April 5, 2022, the United States Supreme Court blocked the District Court Order, reinstating the Trump-era rule. This will allow the parties to file a Ninth Circuit appeal and a potential writ of certiorari to the Supreme Court.

The interpretation of this rule and any future appeals, amendments or decisions have a direct impact on the potential for property development as these rules determine what land is subject to federal regulation under Section 404 of the Clean Water Act and costly National Environmental Policy Act reviews of development proposals. Connell Foley is monitoring the progression of this issue, and we are available to assist developers and landowners with the application of these changes.