January 10, 2022

Toppling Caligula’s Column: Seeking a Viable, Durable WOTUS Rule

Posted on January 10, 2022 by Zach Miller

On December 7, 2021, EPA and the Army Corps of Engineers jointly issued a formal Proposed Rule to define “waters of the United States” (WOTUS) regulated under the Clean Water Act (CWA).  Comments on the proposal are due by February 7, 2022.

Depending on how one counts, this the 8th rulemaking attempt to define WOTUS, and the third in the last six years.  The 2015 so-called Clean Water Rule adopted during the Obama administration (2015 Obama Rule) was the first attempt to comprehensively define WOTUS after the seminal Supreme Court rulings on that term in Riverside Bayview, SWANCC, and Rapanos.   Prior to that effort, the agencies had relied on very terse, general rules in place prior to SWANCC and Rapanos, in combination with some non-binding, post-Rapanos agency Guidance Documents to implement the agencies’ understandings of the directives of those decisions.

After extensive litigation over the 2015 Rule, the Trump administration rescinded and replaced it in 2020 with their own so-called Navigable Waters Protection Rule (2020 Trump Rule).  That Rule greatly narrowed the scope of waters included as WOTUS and in effect attempted to codify the “relatively permanent waters only” standard in Justice Scalia’s Rapanos plurality opinion.

That 2020 Rule in turn got mired in litigation, was held to be unlawful by several courts, and is currently considered by the Biden administration to be invalid and not in effect.  As a result, as during much of the Trump administration, the agencies again are currently administering the CWA under the long-standing pre-2015 WOTUS rules and guidance documents, until a “permanent” replacement rule can be adopted.  The pending Proposed Rule is intended to serve that role.

In 2015, I wrote a blog on this site with a similar title, referring to the reported practice of the unhinged Emperor Caligula of inscribing laws at the top of columns too tall to be read and then punishing Roman citizens for failing to follow them.  I compared that injustice to the long-standing lack of clarity about what exactly is a WOTUS regulated under the modern, 1972 version of the CWA.  It was my hope and plea at that time that the agencies (or better yet, Congress) would finally provide some formal, appropriate clarity on this key issue.  Unfortunately, after nearly 50 years, so far no luck.  And no relief.

The 2015 Rule and 2020 Rule each had several procedural and/or substantive flaws that have been detailed by various courts and won’t be repeated here.  Suffice it to say, neither of those Rules is likely to be resurrected or reproposed in their original forms.  And our woefully dysfunctional Congress is even less likely to agree any time soon on any legislative fix, which would be the most appropriate resolution of this issue.

So, the pending Proposed Rule is our current best hope for a clear, sensible, and (what the agencies refer to as) “durable” regulatory definition of WOTUS.  The Proposed Rule seeks to survive the certain future onslaught of legal challenges by striking a middle-ground between the 2015 Obama Rule and the 2020 Trump Rule.  It does so by proposing to codify the pre-2015 WOTUS rules with “certain amendments” to update them to incorporate the SCOTUS rulings from SWANCC and Rapanos.  While that sounds very modest and status quo, the key question becomes what exactly will be the “certain amendments” implementing such decisions and related agency practices.

The heart of the proposed amendments is that, in addition to the relatively non-controversial previously listed specific waters included as WOTUS (such as interstate and traditional navigable waters), other waters will be considered WOTUS if they meet either the “relatively permanent” standard (of the Trump Rule and Scalia Rapanos opinion) or the “significant nexus” standard (as fleshed out in Justice Kennedy’s Rapanos opinion and the agencies’ subsequent guidance).  While that either/or approach was blessed by several lower courts following Rapanos, the Trump Rule and its supporters criticized the “significant nexus” approach as overbroad and improperly (in their view) including ephemeral streams and other waterbodies excluded under the narrower “relatively permanent” standard.  Including both standards, of course, makes an enormous difference in the scope of coverage, especially in the arid West.  And contrary to the claims of some, very few states took steps to fill the large gap in coverage and protection caused by the 2020 Trump Rule.

Last month, Jeff Porter and Seth Jaffe wrote thoughtful blogs about whether the Proposed Rule could withstand judicial scrutiny under the Commerce Clause.  Jeff’s concern, in part, was that a waterbody that is “relatively permanent” but hydrologically isolated and solely intrastate (as the flooded disposal site in SWANCC) might not have a sufficient connection to interstate commerce to be constitutional.  That is a valid but ironic concern, since Justice Scalia in Rapanos and the 2020 Trump Rule both touted that standard as the sole valid WOTUS test.  Nevertheless, the agencies could increase the odds of surviving a certain challenge on that ground by confirming in the final rule that “relatively permanent” waterbodies that are isolated and solely intra-state are not WOTUS unless they have some direct connection to interstate commerce (ala Great Salt Lake in Utah) or also have a “significant nexus” to another WOTUS.

As Seth pointed out, the alternative “significant nexus” standard not only has its roots in SWANCC and Kennedy’s Rapanos opinion, but also is firmly grounded in a scientific evaluation of which waterbodies in fact affect navigable waters and has been the central test used by the agencies for over a dozen years.  The Trump administration itself reinstated this pre-2015 approach as a placeholder prior to its 12th-hour 2020 Rule.  That history and the requirement of a direct, objective nexus to other clearly regulated waters should allow that standard also to survive judicial scrutiny.  As the Proposed Rule preamble further notes, the statutory term “WOTUS” is ambiguous and subject to many interpretations, so the agencies should have “generous leeway” in interpreting it by rule (quoting CJ Roberts in Rapanos).  With the current SCOTUS make-up, however, it’s uncertain whether those solid grounds will be enough.

Space here does not permit a full overview and analysis of the Proposed Rule.  But one other aspect merits mention.  Both the 2015 Obama Rule and the 2020 Trump Rule expressly listed a number of areas and waterbodies that will not be considered WOTUS (such as pools, puddles, and certain irrigated areas), to remove any doubts, and also avoid any related rulemaking and judicial objections.  Those areas have long been excluded as WOTUS in practice by the agencies.

In the Proposed Rule, however, the agencies have now elected not to list and clearly exclude such areas, on the theory that, “Everyone knows what those excluded areas are, so we don’t need to put them in writing in the Rule.”  Really?  If these excluded areas are purportedly well-known and in practice will be excluded, they absolutely should be included and clearly described in the Rule.  Refusal to do so would be a classic “Caligula’s Column” approach—we won’t spell out the law for you but expect you to know it.

If such exclusions are properly added to the Proposed Rule, opposing parties no doubt will quibble over their wording.  But the agencies could avoid the need for a second round of rulemaking for such additions and any subsequent resulting delay by amending the Proposed Rule before the end of the current comment period and extending that period solely for those additions, or by doing so as soon as possible after expiration of that period.  Failure to do so will simply invite numerous unnecessary comments and complaints and potential future judicial squabbles.

In sum, in finalizing this Rule:  Be clear.  Be simple.  Avoid avoidable disputes.  Topple the column.  After 50 years, let’s finally adopt an appropriate, durable WOTUS Rule.