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Reggie L. Bouthillier
Tallahassee
Jeffrey A. Collier
Tampa
Jacob T. Cremer
Tampa
F. Joseph Ullo, Jr.
Tallahassee
Special thanks to Nicholas Marler who assisted in the drafting of this alert. Nicholas is a third-year Juris Doctor Candidate at Stetson University College of Law.
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New 'Navigable Waters Protection Rule'
is the Controlling Law in Florida - for Now.
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A new federal rule significantly narrows the reach of the Clean Water Act across the country and in Florida for now, but continuing and potential challenges make its future uncertain. On January 23, 2020, the U.S. Environmental Protection Agency ("EPA") finalized the Navigable Waters Protection Rule ("New Rule"), replacing the 2015 Waters of the United States ("WOTUS") rule. In 2017, President Trump issued an Executive Order requiring the WOTUS rule to be revised; this was followed by the issuance of a proposed rule in late 2018. The EPA then began a two-step plan to (1) repeal and (2) revise WOTUS. The New Rule was finalized and issued by the U.S. Army Corps of Engineers ("the Corps") in January 2020.
The New Rule is effective as of June 22, 2020. As we previously reported, the New Rule is intended to provide a balance between protecting the nation's waters with clear, predictable language while also preserving the rights of state and local governments, private property owners, and tribes. The New Rule offers a much narrower definition of what constitutes "waters of the United States" by listing four specific categories of waters covered by the New Rule. Any other waters besides the four categories listed will not be considered a "water of the United States."
Pursuant to the Executive Order, the New Rule was modeled after Justice Scalia's plurality opinion in Rapanos v. United States. We have discussed the Rapanos decision in depth in prior publications. In Rapanos, the Supreme Court attempted to determine the limits of the Corps' jurisdiction over wetlands. However, the Court's decision resulted in a plurality opinion, two concurring opinions, and two dissenting opinions, in turn making the application of Rapanos murky.
In response to the New Rule, multiple states sought judicial review asking for a preliminary injunction preventing the New Rule from taking effect. Two of the lawsuits requesting a preliminary injunction, filed in California and Colorado, were recently decided by the federal courts. Both lawsuits deal with whether the New Rule was lawfully promulgated - but the courts came to opposite conclusions. Both courts referenced the Supreme Court's plurality, concurring, and dissenting opinions in Rapanos.
In California v. Wheeler, California and twenty-two other states challenged the New Rule and requested a national preliminary injunction. The states argued that the New Rule was expressly prohibited by the Supreme Court's decision in Rapanos because five of the justices had all disagreed with Justice Scalia's plurality opinion - which the New Rule was modeled after. The Court rejected this argument, reasoning that a Court cannot issue a holding that determines how agencies "must construe" the Clean Water Act in their regulations. Conversely, in Colorado v. U.S. Environmental Protection Agency, Colorado challenged the New Rule, requesting only a state-wide preliminary injunction. The state brought forward several arguments, including a claim that the EPA had "unlawfully promulgated the New Rule" by modeling it after Justice Scalia's plurality opinion. The Court agreed with Colorado, explaining that while "it is notoriously difficult to understand what Rapanos is for," it is very clear that Rapanos is against embracing the plurality opinion's viewpoint, as evidenced by the five justices that rejected Justice Scalia's view on the issue. The Court concluded that because the New Rule was an attempt to turn the plurality opinion into binding law - when it had already been rejected by the Supreme Court - Colorado was likely to succeed on the merits of the case, and granted the state-wide preliminary injunction.
Currently no challenges have been brought against the New Rule in Florida. Thus, the New Rule is the law of the land in Florida - at least for now. We will continue to monitor and report on any changes the New Rule brings. Our Land Development, Zoning & Environmental team has extensive experience advising clients on all matters related to wetland regulation, permitting, and enforcement, and all aspects of administrative rule development. We will continue to monitor the implementation of the Clean Water Act and the New Rule in Florida. For more information, please contact us.
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