WOTUS, We Hardly Knew Ye

Posted on March 2, 2017 by Rick Glick

With a flourish of his pen, on February 28, President Trump signed an Executive Order  aimed at dismantling the ill-fated Waters of the United States (WOTUS) rule.  The rule was the latest attempt by EPA and the Army Corps of Engineers to bring some clarity to the limits of federal authority under the Clean Water Act.  Clarity in this area has been elusive, and though many were unhappy with the rule, no one benefits from the current state of confusion.

The uncertainty begins with the Clean Water Act, which Congress said applies to “navigable” waters and then helpfully defined navigable to mean “waters of the United States.”  The agencies and the courts have struggled ever since to figure out when wetlands are jurisdictional.  The courts have not helped.  In Rapanos v. U.S., a 5-4 majority of the Supreme Court found the Government had overreached, but could not agree as to why.  Justice Scalia, writing for a plurality of the Court, would limit jurisdiction to “relatively permanent, standing or continuously flowing bodies of water,” excluding intermittent or ephemeral channels and most drainage ditches.  In a concurring opinion, Justice Kennedy invoked a “significant nexus” test whereby jurisdiction should apply if a hydrologic connection between a wetland and a navigable water could be demonstrated.  Later courts have tried to follow both tests, with mixed results.

Justice Scalia’s test is a lot easier to apply:  If you can see the water or the land goes squish under your feet, there is jurisdiction.  Justice Kennedy’s test requires a case-by-case review and exercise of professional judgment.  The WOTUS rule focused more on the Kennedy test to indicate how the Government would make its jurisdictional determinations.

Without getting into detail that now is mostly moot, the rule generated about one million public comments and lots of litigation—17 District Court complaints and 23 petitions to various Circuit Courts of Appeal.  It seemed certain that the Supreme Court would get another opportunity to declare the law of WOTUS.

No doubt the Court will get that chance, but in a drastically different context.  The president’s Executive Order has no legal effect, other than to get the process started.  The Obama Administration’s WOTUS rule was subject to years of notice and comment before adoption, and the Trump Administration’s revisions will have to go through the same process.  No doubt they will be as controversial and will also be fiercely litigated.  That will take a very long time to play out, and won’t likely be completed during a Trump first term. 

In the meantime, property owners still would like to develop their property, and the Government still has to apply the law.  The Trump Executive Order gives direction that a new WOTUS rule should follow the Scalia test, but that doesn’t reflect the way jurisdictional determinations are made today.  Suffice to say that the Kennedy significant nexus test will still be in play for the near to intermediate term, and a prudent developer will include a wetlands determination as a key part of the due diligence for the project.

EPA/Corps Adopt “Waters of the U.S.” Rule: What’s Next?

Posted on May 28, 2015 by Rick Glick

Today EPA and the Army Corps of Engineers released a prepublication version of the final rule defining “waters of the United States,” the jurisdictional trigger under the Clean Water Act.  The term needs defining because the Act extends to navigable waters and adjacent wetlands, but it is often not clear how some streams or wetlands relate to a navigable waterway, and the Supreme Court has provided conflicting guidance. 

So, the agencies have attempted to clarify.  With the new definition they hope to reduce the number of case-by-case jurisdictional determinations and litigation, but they understand full well the controversial nature of the rule, having received over a million comments on the draft published on April 21, 2014.  In response, EPA and the Corps today also released a battery of public relations offerings —press release, fact sheets, blogs, op-ed pieces—to explain and defend the rule.  The controversy will not end here.

As previously reported in this space, the impetus for the rule is uncertainty created by a 2006 Supreme Court decision in Rapanos.  In that case, a 5-4 split Court held that the government had overstepped its authority, but failed to issue a majority opinion.  Instead, four justices, led by Justice Scalia, proposed a rule in essence requiring that the subject waters or wetlands be free flowing and obviously wet.  The concurring opinion by Justice Kennedy would instead look for a “signficant nexus” between a wetland and a navigable waterway.  The lower courts have struggled ever since to discern a clear jurisdictional definition.

At first glance, the final rule does not veer much from the draft.  For a comprehensive analysis of the draft rule, including the cases leading up to the rule, see the American College of Environmental Lawyers report for the Environmental Council of the States.  Although EPA and the Corps have declared that the rule does not represent a major policy shift, a diverse ACOEL writing team—made up of experts in academia, non-profit organizations, and private practice—had differing opinions.  Some saw a sea change in federal policy, while others believed the draft rule was simply a restatement of existing policy. 

Congress has been fulminating about government overreach since the draft rule was published.  On May 12, 2015 the House passed HR 1732, the Regulatory Integrity Protection Act, in an effort to block the final rule.  If the Senate passes the bill, Congress will need to muster the votes to override a certain presidential veto.

Although the purpose of the final rule is to provide some certainty as to the scope of Clean Water Act jurisdiction, it is highly likely to be challenged by industry groups in the courts.  That means years of litigation and appellate review across the country, ultimately landing once again before the Supreme Court.  Whether we get clarity this time from the Court remains to be seen.

Gradient of Connectivity: Coming to a 404 Process Near You!

Posted on November 3, 2014 by Rick Glick

The Science Advisory Board has at last released its peer review of EPA’s draft report on Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis, the technical support for the proposed rule on definition of “waters of the United States” under the Clean Water Act.  The SAB paper is generally supportive of EPA’s analysis.

The proposed rule has generated a great deal of controversy, causing EPA and the Corps to extend the comment period twice (November 14 is the current deadline).  Part of the controversy relates to EPA’s analysis of the technical literature supporting the proposed rule, particularly the effect of tributaries, intermittent and ephemeral streams on navigable waters.  A detailed explanation of the proposed rule, case law leading up to it, and prior agency guidance can be found here.

The SAB paper confirms EPA’s science, but recommends more nuance in some instances.  For example, the paper agrees that tributaries, intermittent and ephemeral streams can have a significant effect on the physical, biological and chemical integrity of receiving waters, but notes that the question is not simply whether there is a connection between upstream sources and navigable waters.  The SAB chides EPA for taking a “binary” view of connectivity—either  a water body is connected to a navigable water or it is not.  Rather, the paper urges EPA to acknowledge there is a “gradient of connectivity.” 

That there is a gradient of connectivity seems obvious, even from a lay standpoint; everything is connected at some level.  But that observation by itself is not terribly helpful, as EPA and the Corps have a regulatory function that is binary in nature—either there is Clean Water Act jurisdiction or there is not.  What would be helpful is guidance on where on the gradient government intervention matters; that is, how the agencies can recognize a truly “significant nexus” as prescribed by Justice Kennedy in Rapanos.

The SAB also makes recommendations to improve the clarity of the EPA report and  make more definitive statements.  For example, the SAB states that the literature supports a firmer statement on downstream functions of “unidirectional,” non-floodplain wetlands.  The SAB also recommended that EPA expand the discussion of approaches to quantifying connectivity, which would increase the utility of the document for regulators.

The SAB paper certainly is a necessary element of the scientific support for EPA’s and the Corps’ proposed rule for determining jurisdiction.  But it is unfortunate that the agencies reached their policy choices in the proposed rule without first having the benefit of the SAB’s input.  That opens the door to criticism that the SAB paper is just window dressing.

Whether that reversed sequence matters in the long term remains to be seen.  Even if EPA and the Corps had waited until the SAB completed its peer review, the rule would probably have come out roughly the same and attracted as much comment.

Looking Ahead to Obama’s Second Term – Thoughts on the Administration’s Environmental Agenda

Posted on December 14, 2012 by Daniel Riesel

Although the still-divided Congress is unlikely to pass significant new environmental legislation over the next four years, the second-term Obama administration has an opportunity to pursue its environmental agenda through the EPA with diminished fear of impacts on the next election. 

The current term saw a period of strong leadership at EPA, but there is a feeling that the agency has not allowed the other regulatory shoe to drop.  EPA stalled on several important regulations, as if anticipating the Romney complaint that excessive regulation was a cause of the recession. Having escaped the prospect of a president hostile to its mission, EPA is now prepared to roll out a queue of pending air pollution regulations in the coming weeks.  The regulations will include final national ambient air quality standards, revised power plant emission standards, and expanded boiler emission rules.   

Since the election, articles and opinion pieces have abounded that speculate on the Obama administration’s second-term approach to climate change. On November 12, 2012, the New York Times published an op-ed article suggesting that the administration could tackle both climate change and the recession by imposing a carbon tax.  A similar suggestion was made in the New Yorker on December 12, 2012.  This is undoubtedly a worthwhile concept, but it is probably a regulation too far.

The second Obama term could be an opportune time to revisit old chestnuts and resolve issues that have bedeviled both the regulated community and environmental advocates.  For example, the EPA and the Army Corps of Engineers have been muddling through a proposed guidance document that aims to clarify the Supreme Court’s murky definition of “waters of the United States” subject to EPA jurisdiction under the Clean Water Act. But why should EPA and the Corps issue mere guidance rather than promptly promulgate binding regulations, which are subject to judicial review?  As a result of adopting binding standards the agencies could gain, in addition to regulatory certainty, a strong basis to resist efforts to make the federal government the national waterfront rezoning authority.

Another stalled national environmental initiative that would benefit from robust leadership in the Obama II administration is EPA’s effort to update its regulations for industrial cooling water intake structures.  EPA proposed regulations, designed to protect aquatic organisms, have remained in draft form since March 2011; additional data has been collected and is being analyzed in the interim.  Pending final federal regulations, states have been left to adopt varying approaches to this important issue.

Finally, this period of relative freedom from election concerns might allow the administration to address a significant example of environmental unfairness, CERCLA’s scheme of sticking certain liable parties with the “orphan share” of environmental remediation costs that arise from contamination, generated over the last two centuries of industrial development, for which no financially solvent responsible party can be identified.  The orphan share is often laid at the doorstep of a financially solvent polluter that caused some, but not all, of the pollution at a Superfund site.  Fairness dictates that the public fund the orphan share, as opposed to the party that is prepared to step forward and clean up its own portion of the mess.  Perhaps such a policy might have a sobering effect on the members of the public who clamor for a return to pristine conditions, so long as they don’t have to pay for it.

Can We Comment Yet? EPA and Corps Issue Proposed New Rapanos Guidance

Posted on May 2, 2011 by Robert Lawrence

I previously posted that EPA and the Army Corps of Engineers’ December 2010 draft guidance document describing how EPA and the Army Corps of Engineers intend to identify jurisdictional waters under the Clean Water Act (CWA) and implement the U.S. Supreme Court’s decisions in Rapanos and SWANCC had been leaked to the public. EPA's Draft CWA Jurisdiction Guidance Is Leaked At Last.Today, at last, EPA and the Corps have published in the Federal Register their proposed “EPA and Army Corps of Engineers Guidance Regarding Identification of Waters Protected by the Clean Water Act” (the “Proposed Guidance”). EPA and the Corps will accept public comment on the Proposed Guidance until July 1, 2011. The Agencies state that rulemaking will follow issuance of the final Guidance. 

Once finalized, the Proposed Guidance will supersede EPA’s and the Corps’ “Joint Memorandum,” providing clarifying guidance on SWANCC, dated January 15, 2003 (68 Fed. Reg. 1991, 1995), and “Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States,” dated December 2, 2008 (the “Rapanos Guidance”).  Until the Proposed Guidance is final, both the 2003 Joint Memorandum and the Rapanos Guidance remain in effect.

 

The Proposed Guidance is more measured in tone than the December 2010 leaked Draft. For example, the Proposed Guidance eliminates the dig at the Bush administration’s earlier Rapanos Guidance as reflecting “a policy choice to interpret Justice Kennedy’s opinion narrowly, resulting in fewer waterbodies found to be jurisdictional under the CWA than under a more faithful interpretation.” And the Proposed Guidance no longer acknowledges that it will “increase significantly” the number of waters which are subject to Clean Water Act jurisdiction. (Instead, the Proposed Guidance carefully explains that, “The agencies expect, based on relevant science and recent field experience, that under the understandings stated in this draft guidance, the extent of waters over which the agencies assert jurisdiction under the CWA will increase compared to the extent of waters over which jurisdiction has been asserted under existing guidance, though certainly not to the full extent that it was typically asserted prior to the Supreme Court decisions in SWANCC and Rapanos.”) Despite this revised language, the fact remains that the Proposed Guidance will significantly expand the scope of waters subject to Clean Water Act jurisdiction for all waters subject to any of the programs authorized under the CWA.

In an April 14, 2011 letter to EPA Administrator Lisa Jackson and the Assistant Secretary for the Army, Jo‑Ellen Darcy, a bipartisan group of 170 members of Congress urged EPA and the Corps to scrap the Draft Guidance and to proceed with formal rulemaking:

The Agencies cannot, through guidance, change the scope and meaning of the Clean Water Act or the statute’s implementing regulations. If the Administration seeks statutory changes to the Clean Water Act, a proposal must be submitted to Congress for legislative action. If the Administration seeks to make regulatory changes, a notice and comment rulemaking is required.

EPA and the Corps appear to have responded to this Congressional pressure and the input of stakeholders by taking a mixed guidance/rulemaking approach. The Proposed Guidance states:

After receiving and taking account of public comments on this document, EPA and the Corps expect to finalize it and to undertake rulemaking consistent with the Administrative Procedure Act.  This process is expected to start with a proposed rule, to clarify further via regulation the extent of Clean Water Act jurisdiction, consistent with the Court’s decisions.  EPA and the Corps decided to begin this process with draft, nonbinding guidance in order to clarify their existing understandings while also considering and receiving the benefit of public comments.

It remains unclear whether all or portions of the Proposed Guidance actually will be subject to rulemaking under the APA. For example, one of the more controversial aspects of the Proposed Guidance deals with the extent to which “other waters” [or “(a)(3) waters”] are subject to Clean Water Act jurisdiction. “Other waters” are “waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce.” 33 C.F.R. § 328.3(a)(3). Under the Proposed Guidance, these other waters are subject to Clean Water Act jurisdiction if a fact specific analysis determines they have a significant nexus to a traditional navigable water or interstate water. The Guidance divides these other waters into two categories – those that are physically proximate to other jurisdictional waters and those that are not – and discusses how each category should be evaluated.The Proposed Guidance states expressly that these other waters will be subject to rulemaking:

The agencies expect to further clarify the scope of waters subject to CWA jurisdiction, including jurisdiction over (a)(3) waters after SWANCC and Rapanos, as part of a notice and comment rulemaking.

As part of this rulemaking process, the Agencies will consider how a significant nexus analysis should be conducted for non-physically proximate other waters. The only other issue that the Guidance specifically says will be addressed in the upcoming rulemaking is whether the existence of an ordinary high-water mark alone is sufficient to establish a significant nexus to downstream traditional navigable or interstate waters, without requiring a site-specific analysis.

Given the substantial increase in waters that will become subject to Clean Water Act jurisdiction under the Proposed Guidance, and the resultant impact upon numerous stakeholders, it seems that substantive parts of the Proposed Guidance that will dictate whether or not a water is jurisdictional under the CWA should be subject to APA notice and comment rulemaking. While this appears to be EPA’s and the Corps’ intent, the specific highlighting of certain issues in the Proposed Guidance that will be subject to rulemaking, with silence on other equally controversial issues, leaves open the question of how much of the Proposed Guidance ultimately will be covered by a proposed rule. In any event, interested persons can take advantage of the sixty-day public comment period to help clarify EPA’s and the Corps’ understanding.

 

Muddling Through: Clean Water Act Edition

Posted on March 1, 2011 by Seth Jaffe

Previously, I discussed EPA’s efforts to “muddle through” on climate change in the absence of comprehensive legislation. This week, I think it’s the Clean Water Act’s turn. If there were any regulatory situation which required some serious muddling through at the moment, interpretation of the Supreme Court’s Rapanos decision almost is a match for the current climate mess. As most of my readers know, Rapanos was a 4-1-4 decision which left EPA, the Corps, developers and environmentalists fairly equally perplexed

Most stakeholders have assumed that Kennedy’s concurring opinion, requiring a “significant nexus” between wetlands and traditional navigable waters before those wetlands are subject to jurisdiction under the CWA, is the law of the land at this point. That is the approach adopted in the Rapanos Guidance issued by EPA and the Corps in 2007. 

A recent decision by the 4th Circuit Court of Appeals, in Precon Development Corporation v. Army Corps of Engineers, illustrates just how muddled post-Rapanos interpretation has become. The decision in Precon – reversing the District Court – found that the Corps had not built a record sufficient to establish that the wetlands which Precon sought to develop were jurisdictional under the CWA. 

There were two technical issues in Precon. Precon lost what one might have thought would be the more significant issue – the Corps’ finding that, although only 4.8 acres were really at issue in this case, and Precon’s entire development includes 166 acres of wetlands, 448 acres of “similarly situated” wetlands would be examined for a substantial nexus to navigable waters. Precon ultimately won, however, because the Court concluded that the Corps’ record did not contain enough physical evidence to support its determination that a significant nexus exists between the 448 wetland acres and the downstream navigable water. 

The Court’s conclusion raised two issues of broad concern to stakeholders. First, the Court granted little deference to EPA’s conclusion on the significant nexus issue. The Corps argued that its conclusion that there was a significant nexus between the site wetlands and the downstream navigable waters was a factual conclusion. However, the Court concluded that the significant nexus determination was not factual. The Court stated that:

The question is instead whether the Corps’ findings were adequate to support the ultimate conclusion that a significant nexus exists. This legal determination is essentially now a matter of statutory construction, as Justice Kennedy established that a “significant nexus” is a statutory requirement for bringing wetlands adjacent to non-navigable tributaries within the CWA’s definition of “navigable waters.”

Well, this is certainly a nice question of administrative law. The significant nexus issue may now be the ultimate legal question. Nonetheless, I would guess that most wetlands scientists and hydrologists would say that this is largely a factual question. Even if the agency is applying its judgment to answer that question, it’s the type of judgment that requires technical expertise – expertise to which courts have traditionally deferred.

The second of the Court’s important pronouncements was that it would not give the EPA/Corps Rapanos Guidance deference under Chevron. Why not?

Because – although it could – the Corps has not adopted an interpretation of “navigable waters” that incorporates this concept through notice-and-comment rulemaking, but instead has interpreted the term only in a non-binding guidance document.”

Isn’t it timely, then, that EPA and the Corps sent a draft new Rapanos guidance to OMB in December, and GOP leadership in the House is proposing language in a continuing resolution that would preclude EPA from using any funds “to implement, administer, or enforce a change to a rule or guidance document pertaining to the definition of waters under the jurisdiction of the Federal Water Pollution Control Act (33 U.S.C. 1251).” Perhaps EPA and the Corps should take half a loaf. Why not agree to shelve the guidance and instead proceed with notice-and-comment rulemaking to clarify Rapanos? At least then the Courts might grant EPA and the Corps more deference in implementation.  It’s already been almost five years since Rapanos was issued. EPA and the Corps can hardly argue that it’s necessary to go the guidance route because they don’t have the time to proceed through the full regulatory process.

Enough muddling through. Take the time to do it right and issue regulations. Then, maybe the muddle will abate. (Can one abate a muddle?)

New Rapanos Guidance Coming--Third Time's the Charm?

Posted on February 10, 2011 by Rick Glick

On December 20, the Environmental Protection Agency and the U. S. Army Corps of Engineers submitted draft guidance to the Office of Management and Budget to determine when wetlands are subject to regulation under the Clean Water Act. This will be the third attempt to provide guidance on implementing the conflicting standards announced by a fractured Supreme Court in Rapanos v. United States.


In an opinion written by Justice Scalia, a plurality of the Court declared that Clean Water Act jurisdiction extended only to wetlands of a semi-permanent nature that abut open water. This is a test that many wetlands, previously thought to be jurisdictional, would fail to meet. A concurring opinion offered by Justice Kennedy announced a wholly different standard: A water or wetland is jurisdictional if there is a “significant nexus” between the wetlands and navigable waters, focusing on whether there is “a reasonable inference of ecological connection” between the two. The dissent written by Justice Stevens and joined by three others, finds both tests wanting and suggests that jurisdiction is present when either is met.
 

Agencies and courts have since strained to reconcile these opposing views. EPA and the Corps have attempted to provide guidance on when and how to apply each test, the first in June 2007 and the second in December 2008. Courts have dutifully tried to discern clarity in the Court’s opinions and have given the joint agency guidance Skidmore deference, meaning they use the guidance to the extent it is persuasive. Considerable uncertainty remains in determining when permits are needed in many cases, causing obvious problems for the development community.
 

The Obama Administration favors a legislative fix, but Clean Water Act reform seems unlikely just now . . . or during my lifetime. There have been a lot of cases decided since the 2008 guidance was released, so the new guidance perhaps will distill that experience and give us something useful to work with. OMB review can take up to 90 days, so look for the guidance no later than the end of March.