White v. United States Envtl. Prot. Agency
| Docket Number | 2:24-CV-00013-BO |
| Decision Date | 18 June 2024 |
| Parties | ROBERT D. WHITE Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendant. |
| Court | U.S. District Court — Eastern District of North Carolina |
This case is about “adjacent” wetlands and their place within the “waters of the United States” as those terms are understood in the Clean Water Act (CWA or the Act). 33 U.S.C. § 1251 et seq. Last year in Sackett v. EPA, 598 U.S. 651 (2023), the Supreme Court narrowed the scope of wetlands considered “adjacent” to “waters of the United States” and thus federally regulable under the CWA. The pre-Sackett administrative edifice, built on a more relaxed understanding, shifted to conform. In September 2023 the Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) issued a final rule revising the definition of “waters of the United States,” including an “adjacent” wetlands provision modeled on Sackett. Revised Definition of “Waters of the United States”; Conforming, 88 Fed.Reg. 61964 (Sept. 8, 2023) (codified at 33 C.F.R. § 328.3 & 40 C.F.R. § 120.2) (the Amended Rule).
Plaintiff Robert White claims that the Corps and the EPA (the Agencies) did not faithfully implement Sackett's test for adjacent wetlands because their definition omits a key element. He sued the Corps and the EPA under the Administrative Procedure Act, 5 U.S.C §§ 702, 706(2), to set aside the allegedly unlawful Amended Rule. He now moves to preliminarily enjoin the Corps and the EPA from enforcing the Amended Rule against him and his properties. [DE 10] Because White is unlikely to succeed on the merits, the Court denies his motion for preliminary injunction.
Robert White is a relative latecomer to an issue that has frustrated federal courts since the early years of the CWA: Which wetlands are adjacent to, and thus considered part of, the “waters of the United States”? Before this Court lays out the facts relevant to White's motion, it is helpful to situate this dispute within the broader framework. The following introduces the CWA's statutory scheme, some of the administrative regulations that implement it, and the key Supreme Court decisions that have interpreted it.
Congress enacted the CWA to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). To that end, the CWA prohibits, among other things, “the discharge of pollutants by any person” into “navigable waters”-which it defines as “waters of the United States”-“[e]xcept as in compliance with the Act.” 33 U.S.C. §§ 1311(a), 1362(7). The CWA defines “pollutants” broadly including not only those that spring to mind like “sewage, garbage . . . [and] radioactive materials” but also seemingly innocuous natural materials like “rock, sand, and cellar dirt.” § 1362(6).
Discharging pollutants or otherwise failing to comply with the Act is no small matter. For even “inadvertent violations” can result in “crushing” consequences. U.S. Army Corps of Eng'rs v. Hawkes Co., 578 U.S. 590, 602 (2016) (Kennedy, J., concurring). On the civil side, a single violation could result in a per day penalty of over $65,000. § 1319(b), (d); 28 U.S.C. § 2461 (note following); 40 C.F.R. § 19.4 (2023). On the criminal side, negligent violations can result in substantial fines and imprisonment for up to a year, and knowing violations double the fines and increase the potential term of imprisonment to three years. § 1319(c)(1). Although the CWA charges the Corps and the EPA with administering and enforcing its provisions, the CWA also authorizes private parties to bring civil actions to enforce its provisions.[1] 33 U.S.C. § 1365.
To comply with the Act and take the severe penalties off the table, property owners can obtain a permit for the “discharge of dredged or fill material into the [waters of the United States] at specified disposal sites” from the Corps.[2] 33 U.S.C. § 1344(a). Obtaining a permit, however, is an expensive, time-consuming process. According to one study, applicants for specialized “individual” permits spend, on average, 788 days and $271,596 to complete the process without including additional costs for mitigation or design changes. Rapanos v. United States, 547 U.S. 715, 721 (2006) (plurality opinion). And that same study has applicant for “general” permits faring better in comparison but still spending, on average, 313 days and $28,915 to complete the permitting process. 547 US. at 721; see also Hawkes, 578 U.S. at 594-95 ().
Still the easiest way to avoid civil and criminal penalties is to not have any “waters of the United States” on your property. For that reason, the statutory term “waters of the United States” is key as it circumscribes the jurisdictional scope of the Act's substantive provisions. See, e.g, Nat'l Ass'n of Mfrs. v. Dep't. of Def, 583 U.S. 109, 115 (2018). Yet it is not always easy to tell when a property contains jurisdictional waters. One available option for property owners is to ask the Corps to make the call by issuing a jurisdictional determination (JD). JDs come in two kinds- “preliminary” or “approved.” 33 C.F.R. § 331.2 (2023). A preliminary JD merely “indicat[es] that there may be water of the United States on a parcel .. ..” Id. Whereas, an approved JD “stat[es] the presence or absence of waters of the United States on a parcel....” Id. Unlike their preliminary counterparts, approved JDs may be administratively appealed and constitute final agency action. See Hawkes, 578 U.S. at 595. If the approved JD is “negative,” meaning the property doesn't have jurisdictional waters according to the Corps, the owner will enjoy a five-year safe harbor from the Agencies only; citizens may still sue for ongoing violations. Id. at 598-99. Of course, that means an “affirmative” approved JD not only blockades the five-year safe harbor but also puts the owner on notice “that if they discharge pollutants onto their property without obtaining a permit from the Corps, they do so at the risk of significant criminal and civil penalties.” Id. at 599-600.
Property owners are not alone in their struggle to determine whether their property includes “waters of the United States.” So too have the Agencies struggled to interpret that term. The Supreme Court has weighed in on the Agencies' interpretations several times, concluding once that the Agencies' interpretation was a reasonable interpretation and rejecting another interpretation as invalid. Compare United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 134 (1985) (), with Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 174 (2001) (SWANCC) ().
The primary beneficiary of this “contentious and difficult [process]” of delineating the “waters of the United States” was the scope of the Agencies' jurisdiction. See Nat'l Ass'n of Mfrs., 583 U.S. at 113. By the early 2000s, the Agencies “interpreted their jurisdiction over ‘waters of the United States' to cover 270-to-300 million acres of swampy lands in the United States- including half of Alaska and an area the size of California in the lower 48 States.” Rapemos v. United States, 547 U.S. 715, 722 (2006) (plurality opinion); see also Sackett v. EPA, 566 U.S. 120, 133 (2012) (Alito, J., concurring) ().
Outside of SWANCC, the “kudzu-like-creep” of the Agencies' jurisdiction over wetlands was unabated. Cf. Zadeh v. Robinson, 902 F.3d 483, 498 (5th Cir. 2018) (Willett, J., concurring) (). But attempts were made to conclusively exegete the statutory term “waters of United States.” In Rapanos v. United States, 547 U.S. 715 (2006), the Supreme Court considered the “waters of the United States” and its relationship to the the Agencies' jurisdiction over wetlands. Yet the Court did not reach a consensus “on precisely how to read Congress' limits on the reach of the Clean Water Act,” leaving “[l]ower courts and regulated entities ... to feel their way on a case-by-case basis.” Rapanos, 547 U.S. at 758 (Roberts, C.J., concurring).
Two competing approaches to the problem emerged from Rapanos. First, the plurality opinion authored by Justice Scalia posited that wetlands fall within “waters of the United States” if they (1) are adjacent to a relatively permanent body of water connected to traditional navigable waters and (2) are linked to that water through “a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins.” 547 U.S. at 742 (plurality opinion). Viewing the plurality's approach as too restrictive, Justice Kennedy suggested instead that “the Corps'[s] jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and the navigable waters in the traditional sense.” 547 U.S. at 779 (Kennedy, J concurring). “Wetlands possess the requisite nexus” when they “significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as navigable.” Id. With neither opinion commanding a majority, the Agencies ran with the more jurisdictional friendly significant-nexus test. See, e.g., Clean Water Rule:...
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