Summary:It will take years to achieve clarity on the “waters of the United States” rule.
With the exception of the Clean Power Plan, no rule has ignited more controversy and litigation than the rule adopted by the Environmental Protection Agency and the Department of the Army seeking to clarify the meaning of the term “waters of the United States” (WOTUS) under the Clean Water Act. The need for clarification stems from the Supreme Court’s confused 2006 decision in the Rapanos case, which muddied the jurisdictional waters by creating three different tests with no controlling majority opinion.
After years of trying to resolve the uncertainty through guidance, and in response to repeated calls from Supreme Court justices and members of Congress, the EPA and the Army Corps of Engineers decided to undertake a formal rulemaking. Beginning in 2013 the agencies conducted an extensive outreach program featuring more than 400 stakeholder meetings and consultations with state and local officials. The rulemaking generated more than 2 million comments, culminating with publication of the final rule in June 2015.
Then it started raining lawsuits. The attacks came from all directions. Twenty-seven states, along with the Farm Bureau, the Chamber of Commerce, the National Association of Homebuilders, and other business interests, accused the agencies of an unconstitutional power grab. A coalition of conservation and waterkeeper organizations chastised the agencies for caving to political pressure and compromising the nation’s water quality. Adding to the confusion over the geographic scope of the Clean Water Act, there is confusion over which court should hear the case. So far some 13 lawsuits have been filed in seven different federal district courts across the country. Hedging their bets, some of the litigants also filed petitions for review in the courts of appeal.
To avoid a chaotic judicial review process the Department of Justice moved to consolidate all of the district court cases in the District of Columbia. At the same time DOJ moved to transfer all of the cases to the Sixth Circuit in Cincinnati, arguing that the Clean Water Act vests the courts of appeals with exclusive jurisdiction over a rule with national scope. However on Oct. 13 the U.S. Judicial Panel on Multidistrict Litigation denied the motion to consolidate. And on Oct. 21 the Sixth Circuit issued a stay of the rule pending its decision on the exclusive jurisdiction questions. Oral argument is scheduled for Dec. 8 and a decision is expected before the end of the year.
While the courts sort out the issue of who gets to decide, the more substantive question is whether the rule itself will survive the legal onslaught. One of the key issues is the bright-line limit the agencies adopted in the final rule that limits federal protection to wetlands and other waters that must be within 4,000 feet of the ordinary high-water mark of traditionally navigable water. This is the first time a numerical limit like this has been established by rule, and it raises both legal and scientific issues. Legally, the limit was not included in the proposed rule so interested parties were not able to comment on it. Scientifically, the limit goes against the advice of the Science Advisory Board, which specifically recommended against drawing uniform lines within watersheds where streams and wetlands and groundwater are all interconnected. Uncharacteristically, it was the staff of the Army Corps—responsible for administering the Section 404 wetlands program—that voiced the strongest objections to this approach in a series of internal memos disclosed in response to congressional inquiries.
There are a number of other legal issues raised by the parties to the litigation, including whether the agencies should have prepared an environmental impact statement (EIS) under the National Environmental Policy Act; whether they should have consulted under the Endangered Species Act; whether they should have reinitiated the rulemaking to allow the opportunity for public comment on the bright-line limits; whether they expanded the reach of the Clean Water Act beyond its historical boundaries; and whether they properly applied the Supreme Court rulings in the Rapanos and SWANCC cases placing limits on the reach of federal authority over wetlands not immediately adjacent to navigable waters.
All of this will take years to sort out and outlast the Obama administration. WOTUS seems destined to wind up back in the lap of the Supreme Court. Justice Kennedy was the swing vote in Rapanos, and WOTUS was clearly written to satisfy his somewhat opaque “significant nexus” test. Whether the agencies have managed to divine exactly what he had in mind, and whether the rule can garner a majority of votes on the court, remains to be seen.