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EPA ROLES BACK FEDERAL WETLANDS PROTECTIONS – AND GETS SUED FOR DOING SO

This past January, the federal government rolled back its protections of wetlands authorized under the United States Clean Water Act. The “Navigable Waters Protection Rule,” effective on June 22, 2020, revises the definition of “waters of the United States,” governing regulated waterways under the federal statute. This move was welcomed by various industry and agricultural groups but, as you can expect, was opposed by many organizations as well.

The baseline for the jurisdiction of the Clean Water Act is “traditional navigable waters,” which is a legal term that is subject to a long history of interpretation in and of itself. From a layman’s interpretation of traditional navigable waters, one imagines waterways through which a boat can pass and in fact, the various interpretations of “waters of the United States” rely heavily on whether the waterway can be linked to interstate or foreign commerce. However, where does that jurisdiction end? The wetlands that drain into a large navigable river? Intermittent pools that may drain to a tributary ultimately leading to a major waterway? The answer has ranged widely from one presidential administration to the next.

This most recent revision to the interpretation of “waters of the United States” was made in response to President Trump’s Executive Order 13778, which promotes economic growth alongside ensuring that the nation’s waterways are free of pollution. The rule comes on the heels of a repeal of certain regulations by the Obama administration, which interpreted the reach of the Clean Water Act to be broader and more encompassing than the new Navigable Waters Protection Rule.

Under the new Navigable Waters Protection Rule, federal limits on disturbances of certain wetlands and smaller bodies of water have been diminished. Bodies of water that, for example, only form following rainfall or only flow during certain parts of the year now have limited federal control. Smaller bodies of water have also been removed from the now amended scope federal protection.

Largely speaking, the new rule identifies four discrete categories of federally regulated bodies of water under: (1) seas and traditional navigable waters; (2) perennial and intermittent tributaries to those waters; (3) certain lakes, ponds, and impoundments, and (4)wetlands adjacent to jurisdictional waters.

Over the years, there have been a series of lawsuits concerning the breath and scope of federal regulation of navigable water bodies. Certain cases have defined which bodies of water are protected under federal law and which bodies were not. The patchwork of federal lawsuits and decisions made the scope of regulation governing “waters of the United States” difficult to clearly ascertain.

The Supreme Court’s plurality decision in Rapanos v. United States, 547 U.S. 715 (2006), best illustrates the diversity of opinion surrounding the interpretation of this broad term. The case concerned whether the Clean Water Act covers wetlands near ditches or human-made drains, which eventually empty into traditional navigable waters. The opinions of the Justices vacillate widely: the plurality, written by Justice Scalia, opined that such federal reach over minor water features is far too expansive. On the other hand, Justice Stevens dissented, opining that any water feature ultimately contributing to the health of the nation’s waters should be regulated, pursuant to the agency interpretation at the time. One could say that the plurality opinion resulted in a wash, and precipitated the broad Obama-era interpretation of “waters of the United States.”

President Trump’s revision purports to clarify the continued uncertainty regarding the Clean Water Act’s reach. Depending on your point of view, the new rule results in a much more practical and user friendly scope of regulation. Alternatively, the rule “gives away the farm” to agriculture groups, builders and other industrial groups by permitting development activates on tangential water bodies.

In response to these federal regulatory changes, on May 4, 2020 the State of New Jersey filed suit seeking to set aside the new regulations in the U.S. District Court for the Northern District of California. Approximately 15 other States have taken the same legal action challenging the new regulations, arguing essentially that they are not sufficiently protective.

According to the lawsuit, New Jersey and the other co-plaintiff States allege that the new regulations need to be repealed because they conflict with the plain language of the Clean Water Act, U.S. Supreme Court precedent, and the EPA’s own scientific findings.

States filing this lawsuit assert that freshwater and coastal wetlands will be harmed if the new federal regulations remain effective. New Jersey has a long history of a very protective wetlands programs, administered by the State of New Jersey through powers and authority delegated to it from the Federal Government.

New Jersey regulations, promulgated under the Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-1 et seq., go even further than federal regulation because they not only protect wetlands, but also “buffer zones” that surround wetlands. Federal regulation, especially under the Navigable Waters Protection Rule, does not protect these buffer areas. In New Jersey, wetlands and surrounding areas play an important role in managing the effects of high density land use and development. Under the Freshwater Wetlands Protection Act and associated regulations such as the Stormwater Management Rule,
N.J.A.C. 7:8 et seq., regulatory permits for major development require detailed hydrologic studies which, for example, ensure wetlands will absorb storm water runoff caused by increased impervious surface area. In In re Orban/Square Props., LLC, 461 N.J. Super. 57 (App. Div. 2019), the Appellate Division vacated the issuance of a NJDEP stormwater permit when it found that the scientific methodology used to justify the permit was insufficient. This case represented a win for environmental groups, which contended that “strict compliance with storm water management rules are of critical importance to New Jersey[.]”

On the other hand, in N.J. Highlands Coalition v. NJDEP, 456 N.J. Super. 590 (App. Div. 2017), the court permitted a waiver for development of a protected “transition area”, the area of land adjacent to a freshwater wetland, when it found that the NJDEP properly concluded that the development would have no substantial impact on the adjacent freshwater wetland, as required by N.J.S.A. 13:9B-18(a) of the Freshwater Wetlands Protection Act.

New Jersey’s lawsuit against the Trump rule illustrates the State’s commitment to increased protection of the its water resources. However, the Trump administration has been known to challenge State law that is more environmentally protective than its federal counterpart, such as its revocation of California’s auto emissions limits. The fate of New Jersey’s environmental protections, at least with respect to its wetlands, buffer zones and tributaries, hangs in the balance.

Industry groups, developers and environmental groups will all be watching this significant federal litigation. Because wetlands recharge our water supplies, provide clean drinking water to millions of New Jersey residents, as well as soil stabilization and habitat, we all have an interest in watching how these protected area will continue to be regulated in the coming year.

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