My apologies for my environmental regulatory blog inactivity. My recovery from eye surgery has been slower than expected. I will catch up on a number of other topics over the next few weeks but today I am going to focus on the WOTUS rulemaking and other recent Clean Water Act developments.
First of all, I want to make clear that this regulatory blog does not represent my personal opinions though my personal perspective and professional experience obviously influence my regulatory analysis at times. I see my role as an Environmental Trainer to be similar to my role as Environmental Counsel. In short, my opinion really is not relevant. My goal is to share my perspective derived from 30+ years of practicing and teaching environmental law (and the perspectives of others) to empower you and assist you in identifying and addressing your environmental compliance responsibilities and establishing environmental policies not to advance any personal agendas. With that said, here’s my take on WOTUS and the Clean Water Act.
A brief history on WOTUS. The controversy over the scope of federal jurisdiction over Waters of United States or WOTUS has bubbled since the passage of the modern Clean Water Act in 1972. In the 1970s, the United States Army Corps of Engineers’ resistance to the Clean Water Act’s call to regulate discharges of dredged or fill material in wetlands set forth in section 404 of the Act culminated with a series of decisions including with United States v. Holland and NRDC v. Callaway that concluded that WOTUS included non-navigable waters including wetlands. Indeed, federal courts including the Supreme Court generally embraced an expansive view of WOTUS until the 21st Century. For example, in U.S. v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), the Supreme Court held that physical barriers between wetlands and other WOTUS do not impact adjacency determinations and that such wetlands are properly within the scope of CWA jurisdiction.
Of course in hindsight, Riverside Bayview Homes may have represented the apex of federal jurisdiction under the CWA as certain stakeholders favoring personal property rights pushed for the narrowing of the WOTUS definition. A more limited view of CWA federal jurisdiction began to take hold in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001), where the “SWANCC” Court rejected an expansive interpretation of WOTUS based on use of the waterbody or wetland by migratory birds colloquially referred to as the “Reasonable Bird” test. The Supreme Court further narrowed the scope of WOTUS in United States v. Rapanos, 547 U.S. 715 (2006), a fractured decision without a majority where Justice Scalia advocated a literal interpretation of the CWA that limited federal jurisdiction to those waters (including wetlands) that have a continuous surface connection to navigable waters of the United States that was embraced by 3 other justices. However, Justice Kennedy’s centrist position advancing a new “significant nexus test” ultimately carried the day while the remaining 4 justices thought EPA and the Corps of Engineers regulations should be upheld.
Unfortunately, Justice Kennedy’s significant nexus test created numerous issues in the real world; hydrologists, biologists and regulators had difficulty making sense of this legalistic test leading to numerous case-by-case WOTUS determinations and… permitting delays. To address the uncertainty regarding WOTUS, the Department of Justice in 2008 under President George W. Bush issued an interpretive memorandum on CWA jurisdiction that is available at https://www.epa.gov/sites/production/files/2016-02/documents/cwa_jurisdiction_following_rapanos120208.pdf. After President Obama took office, EPA and the Corps of Engineers promulgated rulemaking seeking to clarify WOTUS and minimize the need for case-by-case jurisdictional determinations at 80 Fed. Reg. 37054 (June 29, 2015).
Private property stakeholders perceived the 2015 WOTUS rule to be overly expansive and challenged the rule in the 6th Circuit. The 2015 WOTUS rule was initially stayed nationwide by the Sixth Circuit in State of Ohio v. United States Army Corps of Engineers, 803 F. 3d 804 (Oct. 9, 2015). However, the Supreme Court removed the nationwide stay on procedural grounds concluding that the challenge to the WOTUS rule must be brought in Federal District Court rather than directly to the Court of Appeals. In response, EPA and the Corps issued the “Suspension Rule” to delay the effective date of the Obama WOTUS Rule at 83 FR 5200 (Feb. 6, 2018) (https://www.epa.gov/wotus-rule/applicability-date-2015-rule). It does not end here. The South Carolina District Court lifted EPA/Corps stay of Final WOTUS Rule under the Suspension Rule in 26 States in Southern Carolina Coastal Conservation League v. Pruitt, 318 F. Supp. 3d 959 (D.S.C. 2018). So, the status of WOTUS is different throughout the country. See https://www.epa.gov/wotus-rule/definition-waters-united-states-rule-status-and-litigation-update.
Undeterred and as directed by “Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule,” EPA and the Corps proposed a new WOTUS rule on February 14, 2019, available at https://www.regulations.gov/document?D=EPA-HQ-OW-2018-0149-0003 that seeks to adopt the narrow interpretation of federal CWA jurisdiction articulated by Justice Scalia in his Rapanos plurality decision. The comment period for the new WOTUS proposed rule closed last week on April 15, 2019, with over 400,000 public comments filed (https://www.regulations.gov/document?D=EPA-HQ-OW-2018-0149-0003).
What Next??? EPA and the Corps of Engineers have been busy with other efforts to advance CWA regulatory relief on a number of fronts as outlined in an article in The Hill posted today entitled “Dirtiest Week For Water In EPA’s History” available at https://thehill.com/opinion/energy-environment/440566-dirtiest-week-for-water-in-epa-history which opines:
“After nearly a half-century of successfully collaborating with states to implement the Clean Water Act, we have just experienced the dirtiest week for water in the Environmental Protection Agency’s history – a three-pronged attack on the Clean Water Act’s ability to keep our water safe and clean.
First, the EPA closed a notably short period for public comment on a proposed rule that would eliminate protections for half of America’s wetlands and countless miles of smaller streams that provide drinking water for millions and serve as the lifeblood of larger streams and rivers. This rule denies the basic science that water flows downhill and that pollution upstream ends up in larger rivers. Similarly, wetlands are the filters and sponges of our aquatic systems. Allowing them to be drained and destroyed for parking lots, corn fields and other uses mean more pollution, larger floods and less habitat for wildlife.
But that was not all. The EPA also announced in an “interpretive statement” that Clean Water Act protections would no longer apply to pollution or sewage discharged into underground wells or aquifers — even if the polluted discharge flows directly into drinking water sources such as lakes or rivers.
Finally, all this happened within days of an order from President Trump instructing the EPA to tie states’ hands in protecting local water quality by constraining the time and information they have to decide whether to approve or veto polluting projects. This will limit the ability of states to object to federally permitted projects, like new reservoirs or oil and gas pipelines, which can be harmful to water quality.”
Please allow me to elaborate…. The interpretive statement referenced in the third paragraph above is guidance issued by EPA and the Corps in the Federal Register on April 23, 2019, available at https://www.govinfo.gov/content/pkg/FR-2019-04-23/pdf/2019-08063.pdf. The guidance effectively directs federal, state and tribal agencies to ignore two federal court decisions – Hawaii Wildlife Fund v. County of Maui, 886 F. 3d 737(9th Cir., 2018) and Upstate Forever v. Kinder Morgan Energy Partners, 887 F. 3d 637 (4th Cir. 2018) which recently held that discharges to groundwater that impact surface water are subject to CWA NPDES permitting - outside of the 4th and 9th Circuits’ jurisdiction.
The order from President Trump refers to an Executive Order issued on April 10, 2019, entitled “Presidential Executive Order on Promoting Energy Independence and Economic Growth,” which limits a State’s ability to object and block energy projects that the State believes will have an unacceptable impact on water quality.
1. WOTUS Rule. No doubt, EPA and the Corps of Engineers will finalize the WOTUS rule in a manner consistent with the Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule. The Environmental Integrity Project reports that “about 51 percent of wetlands and 18 percent of streams across the U.S. would lose their federal protections if the WOTUS rule is finalized as proposed. Among those losing their protections would be ephemeral streams that only flow after rain or snow events, and scattered wetlands that are not adjacent to streams, rivers or other water bodies and not connected on the surface to them.” http://www.environmentalintegrity.org/trump-watch-epa/regulatory-rollbacks/. You can get a feel for the level of controversy over the WOTUS rule by reviewing the history of litigation and rulemaking compiled by the ABA at https://www.americanbar.org/groups/environment_energy_resources/resources/wotus/wotus-rule/. Expect that the final WOTUS rule will be challenged by numerous environmental stakeholders and embroiled in litigation for years that ultimately will culminate before the Supreme Court only increasing uncertainty regarding the scope of WOTUS for years to come….
2. EPA Interpretive Guidance. My sense is that EPA is on shaky legal grounds and that the federal courts are likely to strike down this EPA’s guidance holding that EPA violated Administrative Procedure Act procedural rulemaking requirements as the DC Circuit did in National Environmental Development Association’s Clean Air Project v. EPA, (May 30, 2014) available at https://caselaw.findlaw.com/us-dc-circuit/1668348.html. The DC Circuit vacated EPA guidance entitled “Applicability of the Summit Decision to EPA Title V and NSR Source Determinations” where EPA sought to limit the application of Summit Petroleum v. EPA, 690 F.3d 733 (6th Cir. 2012), to the 6th Circuit just as EPA’s interpretive guidance now seeks to limit federal court CWA jurisdiction decisions to the 4th and 9th Circuits. Of course, in our topsy-turvy world, back in 2012, EPA issued guidance to limit the scope of a judicial decision that constrained EPA’s regulatory authority to impose New Source Review obligations on certain oil and gas operations under the Clean Air Act whereas now EPA has issued guidance to limit the impact of a judicial decision that expands EPA’s regulatory authority to control pollution that impacts surface water quality under the Clean Water Act. We live in strange times indeed….
3. President Trump’s Executive Order. This Executive Order already has garnered significant attention by environmental stakeholders. See, e.g., https://earthjustice.org/news/press/2019/earthjustice-responds-to-trump-executive-order-urges-epa-to-ensure-transparency-and-public-input-in-clean-water. I anticipate that application of the Executive Order will be challenged in federal court by States, Tribal Nations and environmental stakeholders and as being inconsistent with the rights afforded to States and Tribal Nations under section 401 of the CWA. I also cannot help noting that one of the driving forces of the proposed WOTUS rule is to honor, respect and rely upon State and Tribal protection of water quality rather than rely on the federal government while this Executive Order seeks to limit the exercise of such authority by States and Tribal Nations…. Don’t be surprised if challenges to the new WOTUS rule and this Executive Order raise this apparent contradiction in their arguments before the Court.
Bottom-line: The current administration’s aggressive attempts to roll back environmental regulations have met substantial resistance from “blue” states and environmental stakeholders and skepticism from federal courts that have overturned or stayed EPA efforts. See https://www.nytimes.com/interactive/2017/10/05/climate/trump-environment-rules-reversed.html?mtrref=www.google.com&gwh=3AC855E92F6303D4B750C8989C60608B&gwt=pay. Uncertainty will continue to abound regarding the status of WOTUS and implementation of numerous other federal regulatory programs going forward. Keep your eyes open and your head on a swivel….