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.