This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.
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By Kacy Manahan, Symposium Editor for Environmental Law and clinician at the Earthrise Law Center at Lewis & Clark Law School
I. Introduction
The scope of the Clean Water Act’s jurisdiction has been controversial throughout the statute’s history. Reconciling the extent of Congress’ Commerce Clause authority with the reality of vast hydrological connections across the United States has been an unenviable task delegated to the United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (the Corps). This post is a comprehensive, though certainly not exhaustive, examination of EPA’s and the Corps’ efforts to define the jurisdictional scope of the Clean Water Act. The issue is once again embroiled in litigation, and regulation is in the hands of an Administration seeking to depart substantially from prior policies. For that reason, I also discuss potential outcomes of the litigation and President Trump’s Executive Order.
II. History of the “Waters of the United States” Rule
In 1972, Congress amended the Federal Water Pollution Control Act to create what we know today as the Clean Water Act.[1] For the first time, federal jurisdiction based on the Commerce Clause power extended beyond traditional navigable waters, as the Act defined “navigable waters” to mean “waters of the United States, including the territorial seas.”[2] EPA and the Corps (the Agencies) share regulatory authority under the Act, however, EPA has ultimate authority to interpret the term “navigable waters.”[3]
A. The Regulatory Evolution of Waters of the United States
The first substantive definition of “waters of the United States” came from EPA’s Office of General Counsel in 1973.[4] EPA believed that removal of the word “navigable” from the definition evidenced congressional intent to regulate “pollution of waters . . . capable of affecting interstate commerce.”[5] The definition included navigable waters, tributaries of navigable waters, interstate waters, and interstate lakes, rivers, and streams used by interstate travelers for recreational purposes, for commercial fishing, or for industrial purposes.[6] EPA issued an official regulatory definition shortly thereafter, changing the final three categories of jurisdictional waters to intrastate waters used by interstate travelers for recreational purposes, for commercial fishing, or for industrial purposes.[7]
The Corps issued its regulatory definition in 1974, covering “those waters of the United States which are subject to the ebb and flow of the tide, and/or are presently, or have been in the past, or may be in the future susceptible for use for purposes of interstate or foreign commerce.”[8] In 1975, the United States District Court for the District of Columbia determined that Congress’ intent in defining “navigable waters” as “waters of the United States” was to assert “federal jurisdiction over the nation’s waters to the maximum extent permissible under the Commerce Clause of the Constitution” and that the term was “not limited to the traditional tests of navigability” as they appeared in the Corps’ definition.[9] The Corps was ordered to publish new regulations based on this interpretation.[10]
Ultimately, after some political controversy,[11] the Corps published an interim final rule aligning with EPA’s regulation.[12] Notably, the Corps definition included wetlands, intrastate waters used for agricultural production, and other waters that, on a case-by-case basis, may be determined by the Corps to “necessitate regulation for the protection of water quality” as defined in EPA’s guidelines.[13] In 1977, the Corps published its final definition distinguishing its jurisdiction under the Act from its jurisdiction under older laws such as the Rivers and Harbors Act.[14] The 1977 definition included five categories of waters including a Commerce Clause-based category: “All other waters of the United States not identified in Categories 1–3, such as isolated lakes and wetlands, intermittent streams, prairie potholes, and other waters . . . the destruction of which could affect interstate commerce.”[15]
The Commerce Clause category, once codified, was adopted by EPA in later regulations.[16] This basis for jurisdiction remained on the books until the latest attempt at defining “waters of the United States” in 2015.[17] By 1982, the Agencies had matching regulatory definitions (the 1982 Rule).[18]
B. Challenges to the 1982 Rule in the Supreme Court
Over the decades, the 1982 Rule faced repeated challenges in court. However, three Supreme Court rulings have fundamentally defined the jurisdiction of the Clean Water Act, influencing the Agencies’ interpretation of the 1982 Rule, and ultimately straining that interpretation to the point where revision was necessary.
1. Riverside Bayview
United States v. Riverside Bayview Homes, Inc.[19] (Riverside Bayview) originated as an enforcement action against defendants who commenced filling wetlands located on their property before the Corps took action on their permit application.[20] The issue before the Court was whether the defendants’ land fell within the Clean Water Act’s jurisdiction.[21]
The Court noted that the language, legislative history, and underlying policy of the Clean Water Act regarding its jurisdictional reach was ambiguous.[22] Based on this ambiguity, the Court analyzed the reasonableness of the Corps’ assertion of jurisdiction over adjacent wetlands.[23] The Court determined:
In view of the breadth of federal regulatory authority contemplated by the Act itself and the inherent difficulties of defining precise bounds to regulable waters, the Corps’ ecological judgment about the relationship between waters and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent wetlands may be defined as waters under the Act.[24]
In deferring to the Corps, the Court upheld the 1982 Rule as permissible under the Clean Water Act.
2. SWANCC
In Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers[25] (SWANCC), the petitioner was a municipal corporation seeking to develop a parcel of real estate for use as a balefill (a type of landfill).[26] Based on a finding that migratory birds utilized gravel pits on the parcel, the Corps asserted jurisdiction, and denied the petitioner’s applications for a section 404 permit.[27]
The controversy in this case arose from language in the preamble to a Federal Register publication by the Corps suggesting that “other waters” as defined in the 1982 Rule included waters utilized by migratory birds.[28]
Distinguishing this case from Riverside Bayview, the Court planted the seed of the now-familiar “significant nexus” standard.
It was the significant nexus between the wetlands and “navigable waters” that informed our reading of the CWA in Riverside Bayview Homes. Indeed, we did not “express any opinion” on the “question of the authority of the Corps to regulate discharges of fill material into wetlands that are not adjacent to bodies of open water . . . .” In order to rule for respondents here, we would have to hold that the jurisdiction of the Corps extends to ponds that are not adjacent to open water. But we conclude that the text of the statute will not allow this.[29]
This statement arguably eliminated the entire category of “other waters” from the jurisdictional scope of the Clean Water Act. A narrower interpretation of the holding focuses on the Migratory Bird Rule. The Court chose to read the Clean Water Act “to avoid the significant constitutional and federalism questions raised by respondent’s interpretation,” meaning the Migratory Bird Rule, and therefore gave the Corps no deference.[30] The Court held that the “other waters” provision “as clarified and applied to petitioner’s balefill site pursuant to the ‘Migratory Bird Rule’ exceeds the authority granted to respondents under § 404(a) of the CWA.”[31]
The Corps interpreted this holding narrowly by issuing guidance advising regulators to no longer assert jurisdiction based on the presence of migratory birds, but to “consult legal counsel” if a water body in question might be connected with interstate commerce.[32]
3. Rapanos
In 2006, the Supreme Court issued its decision in Rapanos v. United States.[33] This decision vacated and remanded two decisions from the United States Court of Appeals for the Sixth Circuit upholding the Corps’ assertion of jurisdiction based on a “significant nexus” standard,[34] however, the contemporaneous opinion was fractured and no majority opinion emerged.[35] Justice Scalia authored the plurality opinion, joined by Chief Justice Roberts and Justices Thomas and Alito.[36] Chief Justice Roberts and Justice Kennedy wrote concurring opinions.[37] Justice Stevens authored the dissenting opinion, joined by Justices Souter, Ginsburg, and Breyer.[38]
In this 4–1–4 split, five justices agreed that the lower court decisions should be vacated.[39] Four justices agreed that the lower court decisions should be affirmed.[40] Eight justices agreed that Scalia’s test would confer jurisdiction.[41] Five justices agreed that Kennedy’s test would confer jurisdiction.[42] Since both tests were approved by a majority of the justices, a definitive test for determining the appropriate connection between traditional navigable waters and other hydrological features was once again eluded.
i. Justice Scalia’s Plurality Opinion
The plurality simplified the jurisdictional inquiry by focusing on the word “waters”, which appears in both sections 502(7) and 502(12).[43] The plurality examined a dictionary definition of “waters” and concludes that based “[o]n this definition, ‘the waters of the United States’ include only relatively permanent, standing or flowing bodies of water.”[44]
The plurality noted that the Court in Riverside Bayview found the line between waters of the United States and dry land to be ambiguous, and therefore deferred to the Corps’ determination.[45] Without pointing to any particular language from SWANCC, the plurality stated that in SWANCC the Court rejected the notion that ecological considerations can provide an independent basis for jurisdiction.[46] Based on this assumption, the plurality added a second requirement to its jurisdictional test: “[O]nly those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such waters and covered by the Act.”[47]
The plurality’s test therefore requires a determination that 1) the “adjacent” water is relatively permanent, and 2) that there is a continuous surface connection to the “adjacent” water.[48]
ii. Justice Kennedy’s Concurrence
In his concurring opinion, Justice Kennedy’s view of the “significant nexus” standard suggests that it is more than an indicator of “adjacency”—he found that Riverside Bayview stood for the proposition that “the connection between a nonnavigable water or wetland and a navigable water may be so close, or potentially so close, that the Corps may deem the water or wetland a ‘navigable water’ under the Act.”[49] Justice Kennedy characterized SWANCC as standing for the inverse: if there is “little or no connection” between a nonnavigable water and a traditional navigable water, then that water is not jurisdictional.[50]
His concurrence discusses how a “significant nexus” may be established: “[W]etlands possess the requisite nexus, and thus come within the statutory phrase ‘navigable waters,’ if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”[51]
iii. Aftermath of Rapanos
Because there is no single “logical subset” from which a clear rule can be divined, courts have disagreed on how to apply the law. Nonetheless, most courts agreed that a water was jurisdictional under the Act at least where Justice Kennedy’s significant nexus test was satisfied, and no court has held that a water is jurisdictional only if it meet’s the plurality’s “continuous surface connection” requirement. [52] In 2008, the Agencies issued a guidance document instructing regulators as to what waters were now considered jurisdictional considering the Supreme Court’s opinion.[53]
III. The Current Status of the 2015 Clean Water Rule
Accepting Justice Kennedy’s invitation to clarify CWA jurisdiction through a new rulemaking,[54] the Agencies promulgated the final Clean Water Rule (2015 Rule) on June 29, 2015.[55] Several states, industry groups, and environmental stakeholders challenged the 2015 Rule on the day of promulgation.[56] One day before the effective date, a district court judge in North Dakota granted a temporary injunction in favor of state petitioners.[57] Meanwhile, the Agencies sought to transfer nine district court cases for centralized pretrial proceedings.[58] The United States Judicial Panel on Multidistrict Litigation denied the government’s motion based on a lack of discovery or questions of fact.[59] By the end of 2015, over one hundred parties had filed twenty-three petitions for review in the courts of appeals, and almost one hundred parties had filed seventeen district court complaints.[60]
A. The Sixth Circuit’s Jurisdictional Ruling
Many petitions originating in the courts of appeals were consolidated in the Sixth Circuit.[61] Determining that state petitioners had demonstrated a substantial possibility of success on the merits, the court issued a nationwide stay of the Clean Water Rule which remains in place today.[62] Several petitioners then moved to dismiss their own petitions due to lack of jurisdiction.[63] Before a panel of judges, petitioners and intervenors argued that the Clean Water Act’s judicial review provision, section 509(b)(1), should be read narrowly to exclude the 2015 Rule from its scope.[64] The federal defendants, on the other hand, argued that either sections 509(b)(1)(E) or 509(b)(1)(F) could be used to invoke court of appeals jurisdiction.[65]
Judge McKeague, delivering the opinion of the court, agreed with federal defendants that section 509(b)(1)(E) applied because the 2015 Rule “indirectly produce[d] various limitations on point-source operators and permit issuing authorities.”[66] Furthermore, § 509(b)(1)(F) applied as well, since the extension of jurisdiction found in the 2015 Rule “indisputably expand[ed] regulatory authority and impact[ed] the granting and denial of permits in fundamental ways.”[67] Judge Griffin, concurring in the judgment, did so only because of circuit precedent.[68] Therefore, petitioners’ and intervenors’ motions to dismiss were denied, and the Sixth Circuit retained jurisdiction based on section 509(b)(1)(F).[69]
B. The Supreme Court Case
Sixth Circuit intervenor National Association of Manufacturers petitioned the Supreme Court for writ of certiorari in September 2016.[70] The Court granted the petition on the following issue:
[W]hether the Sixth Circuit erred when it held that it has jurisdiction under 33 U.S.C. § 1369(b)(1)(F) to decide petitions to review the waters of the United States rule, even though the rule does not “issu[e] or den[y] any permit” but instead defines the waters that fall within Clean Water Act jurisdiction.[71]
At the time of this writing, opening briefs are due to be filed on April 27, 2017[72]
IV. President Trump’s Executive Order and the Future of Rulemaking and Litigation
The election of Donald Trump undoubtedly ushered in the beginnings of a seismic shift in federal environmental policy. On February 28, 2017, President Trump signed an Executive Order directing the Agencies to review the 2015 Rule for consistency with the following policy: “It is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.”[73] The Agencies are next directed to “publish for notice and comment a proposed rule rescinding or revising the rule, as appropriate and consistent with law.”[74] Finally, the Order mandates that the Agencies “shall consider interpreting the term ‘navigable waters,’ . . . in a manner consistent with the opinion of Justice Antonin Scalia” in Rapanos.[75] A rule defining “waters of the United States” in accordance with this Order would represent a significant and unprecedented narrowing of Clean Water Act jurisdiction. Notably, this Executive Order has no immediate regulatory effect. However, for the remainder of this post, the discussion will assume that the Agencies share the interests of the State petitioners, and will seek a litigation strategy leading to the collapse of the 2015 Rule.
As a result of the Executive Order, the federal respondents in National Ass’n of Manufacturers v. United States Department of Defense sought to hold the Supreme Court briefing schedule in abeyance. This motion was denied, however, after facing opposition from several parties.[76]
A. Potential Outcomes of Current Litigation
Based on federal respondent’s failure to convince the Court to hold briefing in abeyance, it is likely that the Court will decide the jurisdictional issue before the 2015 Rule’s revision or rescission. Once litigation returns to the Sixth Circuit or the district courts (depending on the ruling), it is unclear whether a court will decide the merits of the 2015 Rule. If the Agencies take regulatory action either before or shortly after the litigation becomes active again, those who petitioned for review of the 2015 Rule may find their petitions mooted.
A two-part test determines mootness: a case is moot if “(1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.”[77] “When both conditions are satisfied it may be said that the case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law.”[78] Undoubtedly, the Agencies’ action in rescinding or revising the rule would qualify as “interim relief or events,” but there is a question of whether a rescission means that “no reasonable expectation that the alleged violation will recur,” or in the event of a revision, whether it has “completely and irrevocably eradicated the effects of the alleged violation”.[79] Additionally, an exception to mootness occurs when a petitioner demonstrates that: “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.”[80]
As an example, if the Agencies rescind the 2015 Rule without immediately replacing it with a new rule, the “capable of repetition yet evading review” exception may apply regarding certain claims. In another scenario, if a revision of the 2015 Rule presents many of the same issues, then the effects of the alleged violations are not completely and irrevocably eradicated and litigation may continue. On the other hand, if the Agencies are not prepared to rescind or revise the 2015 Rule upon resumption of litigation, and they attempt to argue that the case is moot by virtue of the Executive Order’s expression of intent alone, it is unlikely that such an argument will meet the Davis test for mootness.
Precedent from the United States Court of Appeals for the Ninth Circuit suggests that if the Agencies cannot immediately revise or rescind the rule, they may have another option—a consent judgment. In Turtle Island Restoration Network v. United States Department of Commerce[81] (Turtle Island), the court held that no Administrative Procedure Act[82] (APA) rulemaking procedure was necessary when environmental plaintiffs and federal defendants entered into a consent decree vacating a portion of a final rule, temporarily reinstated the previous rule, and remanded the rule to the agency to reconsider a new rule.[83] Industry defendant-intervenors appealed the consent decree and cited the United States Court of Appeals for the District of Columbia Circuit’s decision in Consumer Energy Council of America v. Federal Energy Regulatory Commission[84] (Consumer Energy) for the proposition that notice and comment is required prior to repeal.[85] The Ninth Circuit distinguished Consumer Energy by finding the concerns motivating the agency in that case to be different from those raised during the original rulemaking and noting that no party in that case had suggested repeal as a remedy.[86] In Turtle Island, the environmental plaintiffs sought repeal for reasons that they had raised during the initial rulemaking.[87] The court also noted that no substantive changes were made to the rule—repealing the provision at issue simply reinstated the prior rule.[88]
In a more recent Ninth Circuit opinion, the court simultaneously reaffirmed its holding in Turtle Island while limiting the types of consent decrees that may alter a regulation:
It follows that where a consent decree does promulgate a new substantive rule, or where the changes wrought by the decree are permanent rather than temporary, the decree may run afoul of statutory rulemaking procedures even though it is in form a “judicial act.” […] We therefore hold that a district court abuses its discretion when it enters a consent decree that permanently and substantially amends an agency rule that would have otherwise been subject to statutory rulemaking procedures.[89]
Together, Turtle Island and Conservation Northwest v. Sherman create the following positive rule: If a consent decree repeals or vacates an agency action, the legal effect is to restore the status quo, and if this restoration is temporarily subject to further agency action—the substance of which remains within the agency’s discretion—then the consent decree may be upheld.[90]
Entering a consent decree may be an attractive option if federal defendants see it as the quickest escape route from litigation. However, petitioners who prefer the 2015 Rule to the prior rule will likely object to the decree. If objection is unsuccessful, the court may consider whether all petitioners’ claims have been mooted by the terms of the consent decree.
B. Possible Regulatory Actions
Shortly following the issuance of President Trump’s Executive Order, the Agencies published a notice of their intent to engage in a rulemaking consistent with that Order.[91]
It is unlikely that they will accomplish this task quickly. Considering the nine-year gap between Rapanos and the final 2015 Rule, the prospect of a final rule occurring within the current administration is questionable. In the meantime, the Agencies may attempt to use a guidance document similar to the 2008 guidance issued after Rapanos. A guidance document based on the plurality in Rapanos will be less susceptible to challenge if implemented while the 1982 Rule is in force, as opposed to the 2015 Rule, which relies heavily on the “significant nexus” test. However, any guidance document that substantively changes the legal meaning of a regulation may be set aside by a court if challenged.[92]
Therefore, if the federal defendants are unable to dispose of the 2015 Clean Water Rule via litigation, they may attempt to revoke the 2015 Rule without immediately replacing it. Such a revocation may be subject to challenges based on procedure, substance, or both. If the Agencies fail to utilize APA notice and comment procedures in revoking the 2015 Rule, a court could invalidate the revocation.
In Consumer Energy, federal defendants argued that their revocation of the rule at issue rendered the case moot.[93] However, the court held that the Federal Energy Regulatory Commission’s revocation order was invalid because the agency did not follow APA rulemaking procedures: “The value of notice and comment prior to repeal of a final rule is that it ensures that an agency will not undo all that it accomplished through its rulemaking without giving all parties an opportunity to comment on the wisdom of repeal.”[94] Substantive challenges to a revocation, rescission, or revision are discussed in the following section.
C. Challenging a New Rule
The oft-cited Motor Vehicle Manufacturers Ass’n of the United States v. State Farm Mutual Automobile Insurance Co.[95] stands for the proposition that “an agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.”[96] This case arose when the Reagan Administration, in a nationwide deregulation effort, rescinded a rule requiring auto makers to install either airbags or passive restraints.[97]
However, in Federal Communications Commission v. Fox Television Stations, Inc.[98] (Fox Television), the Court clarified its ruling: “[O]ur opinion in State Farm neither held nor implied that every agency action representing a policy change must be justified by reasons more substantial than those required to adopt a policy in the first instance.”[99] The Court explained that the distinction being made in State Farm was between a § 706(1) review of a failure to act and a § 706(2)(A) review of agency action, not initial and subsequent agency action as in a rulemaking and rescission.[100]
Describing the support required for a change, the Fox Television Court highlighted that an agency must “[1)]display awareness that it is changing position,” and it is sufficient if the record shows that “[2)] the new policy is permissible under the statute, [3)] that there are good reasons for it, and [4)] that the agency believes [the new policy] to be better.”[101] The fourth element is similar to a free space in bingo—the agency’s change in policy “adequately indicates” its belief that the new policy is better.[102]
Fox Television says an agency must “provide a more detailed justification than what would suffice for a new policy created on a blank slate”: When 1) “its new policy rests upon factual findings that contradict those which underlay its prior policy” or 2) “when its prior policy has engendered serious reliance interests that must be taken into account.”[103] In these scenarios, “a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.”[104]
Although it seems relatively easy for an agency to justify a change in policy based on the Fox Television standard, a question remains regarding what role the extensive scientific record used to justify the 2015 Rule may play in challenging a new rule.[105]
Ninth Circuit precedent emerging from the Bush-era “Roadless Rule” provides useful guidance for how a court may handle a changed policy. In a case regarding the “Tongass Exemption” to the Roadless Rule, the court held that the United States Department of Agriculture’s 2003 Record of Decision (ROD) adopting the Tongass Exemption (which was based on the 2001 Roadless Rule Final Environmental Impact Statement) was arbitrary and capricious based on a Fox Television analysis of the change in policy.[106] In the 2001 ROD for the Roadless Rule, the agency found that “the long-term ecological benefits to the nation of conserving these inventoried roadless areas outweigh the potential economic loss to southeast Alaska communities from application of the Roadless Rule.”[107] In the 2003 ROD for the Tongass Exemption, however, the agency reversed its policy based on “concern about economic and social hardship that application of the roadless rule’s prohibitions would cause in communities throughout Southeast Alaska.”[108]
The Ninth Circuit found that the agency “made factual findings directly contrary to the 2001 ROD and expressly relied on those findings to justify the policy change.”[109] The court was careful to note that agencies are entitled to give more weight to certain concerns, but may not “simply discard prior factual findings without a reasoned explanation.”[110] The finding at issue was the necessity of the Roadless Rule to maintain important roadless area values.[111] The 2001 ROD made this finding, but the 2003 ROD found that the Roadless Rule was unnecessary because roadless values were protected by the Tongass Forest Plan.[112] The agency concluded that the sufficiency of the Forest Plan struck a new balance in its analysis, causing socioeconomic concerns to outweigh the benefits of the Roadless Rule’s protections.[113] The court found that the 2003 ROD violated the APA because the agency provided no reasoned explanation for “why an action that it found posed a prohibitive risk to the Tongass environment only two years before now poses merely a ‘minor’ one.”[114]
However, the Agencies may reevaluate their policy choices based on the facts available to them if the statute permits the resulting rule. In National Ass’n of Home Builders v. United States Environmental Protection Agency,[115] the D.C. Circuit rejected petitioners’ argument that the amendment of a rule was invalid because the promulgating agency merely revisited old arguments rather than basing its amendment on new facts or circumstances.[116] The court held that “a reevaluation of which policy would be better in light of the facts” is permissible, as Fox Television made clear that “this kind of reevaluation is well within an agency’s discretion.”[117]
The court also rejected petitioner’s contention that “because the [r]ule eliminates a provision that was consistent with congressional intent, the Court should not defer to EPA in making such a decision.”[118] The court held that “the fact that the original [rule] was consistent with congressional intent is irrelevant as long as the amended rule is also permissible under the statute.”[119] However, it was also emphasized that EPA found the rule’s amendment to promote “to a greater extent, the statutory directive.”[120] The court noted that “it was hardly arbitrary or capricious for EPA to issue an amended rule it reasonably believed would be more reliable, more effective, and safer than the original rule.”[121]
Again, assuming that any new rule will be promulgated pursuant to the Executive Order, the rule will likely follow the standard enunciated by the late Justice Scalia in Rapanos. A petitioner may have an uphill battle in arguing that such a policy is not permitted by the Clean Water Act—not only is the plain language of the Act uncommonly vague, but an interpretation crafted by a Supreme Court justice and accepted as sufficient to establish jurisdiction by a majority of the Court is uncommonly valid. However, those who wish to see a more protective rule may be able to argue congressional intent despite the D.C. Circuit’s holding in National Ass’n of Home Builders—since EPA, in that case, believed its new regulation increased conformity with the purpose of the statute rather than deviated from it.[122]
V. Conclusion
Although it is difficult to see clearly into the future, those who have studied or practiced administrative law know that APA notice and comment rulemaking requires substantial resources. To develop an administrative record supporting a rule based on Justice Scalia’s plurality in Rapanos may take years. Once the rule is final, it will face opposition from many directions. In the case of Clean Water Act jurisdiction, a change in the regulatory landscape affects a wide swath of interests—state sovereignty, landowner rights, industry flexibility, human health, conservation, and recreation. Considering that even a guidance conforming with Justice Scalia’s test could be subject to judicial review, there seems to be no tool that the Trump Administration can utilize to rapidly change the regulatory landscape of the Clean Water Act. In the words of former President Barack Obama, “the federal government and our democracy is not a speedboat, it’s an ocean liner.”[123]
[1] Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816 (codified as amended at 33 U.S.C. §§ 1251–1388 (2012)).
[2] Clean Water Act, 33 U.S.C. § 1362 (2012); Stephen P. Mulligan, Cong. Research Serv., R44585, Evolution of the Meaning of “Waters of the United States” in the Clean Water Act 1 (2016).
[3] See 33 U.S.C. § 404 (2012) (describing the duties of the Corps and EPA in permitting discharge of dredged or fill material); Administrative Authority to Construe § 404 of the Federal Water Pollution Control Act, 43 Op. Att’y Gen. 197 (1979).
[4] Office of Gen. Counsel, U.S. Envtl. Prot. Agency, Meaning of the Term “Navigable Waters” (Feb. 6, 1973), reprinted in Office of Gen. Counsel, U.S. Envtl. Prot. Agency, A Collection of Legal Opinions: December 1970–December 1973, at 295 (1975).
[5] Id.
[6] Id.
[7] See National Pollutant Discharge Elimination System, 38 Fed. Reg. 13,528, 13,529 (May 22, 1973) (current version codified at 40 C.F.R. § 230.3 (2016)).
[8] Permits for Activities in Navigable Waters or Ocean Waters, 39 Fed. Reg. 12,115, 12,119 (Apr. 3, 1974) (current version codified at 33 C.F.R. § 328.3 (2016)); see also 33 C.F.R. § 209.260 (1974)) (providing detailed information regarding how navigability was determined).
[9] Nat. Res. Def. Council, Inc. v. Callaway, 392 F. Supp. 685, 686 (D.D.C. 1975).
[10] Id.
[11] Mulligan, supra note 2, at 9.
[12] Compare Permits for Activities in Navigable Waters or Ocean Waters, 40 Fed. Reg. 31,320, 31,324–25 (July 25, 1975) (the Corps’ definition), with 40 C.F.R. § 125.1(p) (1974) (EPA’s definition at the time of the Corp’s promulgation).
[13] 40 Fed. Reg. at 31,324–25.
[14] Rivers and Harbors Act of 1899, 33 U.S.C. §§ 401–418, 502, 687 (2012); Regulatory Programs of the Corps of Engineers, 42 Fed. Reg. 37,122, 37,127 (July 19, 1977); Mulligan, supra note 2, at 10 n.64.
[15] 42 Fed. Reg. at 37,127–28, 37,144 (codified at 33 C.F.R. § 323.2(a) (1978)); Mulligan, supra note 2, at 10.
[16] See Consolidated Permit Regulations, 45 Fed. Reg. 33,290, 33,424 (May 19, 1980) (codified at 40 C.F.R. § 122.3 (1981)).
[17] Mulligan, supra note 2 at 10.
[18] 40 C.F.R. § 122.3 (1982), Interim Final Rule for Regulatory Programs of the Corps of Engineers, 47 Fed. Reg. 31,794, 31,810 (July 22, 1982).
[19] 474 U.S. 121 (1985)
[20] Id. at 124.
[21] Id. at 126.
[22] Id. at 132.
[23] See generally Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) (establishing a two-part test to determine whether to grant an agency deference in interpreting a statute).
[24] Riverside Bayview, 474 U.S. at 134.
[25] 531 U.S. 159 (2001).
[26] Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Eng’rs, 998 F. Supp. 946, 948 (N.D. Ill. 1998), aff’d, 191 F.3d 845 (7th Cir. 1999), rev’d, 531 U.S. 159 (2001).
[27] Id.
[28] Final Rule for Regulatory Programs of the Corps of Engineers, 51 Fed. Reg. 41,206, 41,216–17 (Nov. 13, 1986).
[29] SWANCC, 531 U.S. at 167–68 (2001) (citation omitted) (alteration in original).
[30] Id. at 174.
[31] Id. (citation omitted).
[32] Matthew B. Baumgartner, SWANCC’s Clear Statement: A Delimitation of Congress’s Commerce Clause Authority to Regulate Water Pollution, 103 Mich. L. Rev. 2137, 2147–48 (2005).
[33] Rapanos v. United States, 547 U.S. 715 (2006).
[34] United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004); Carabell v. U.S. Army Corps of Eng’rs, 391 F.3d 704 (6th Cir. 2004).
[35] Rapanos, 547 U.S. at 757.
[36] Id. at 718.
[37] Id. at 757 (Roberts, CJ., concurring); id. at 759 (Kennedy, J., concurring in judgment).
[38] Id. at 787 (Stevens, J., dissenting). Justice Breyer also wrote a separate dissent. Id. at 811 (Breyer, J., dissenting).
[39] Id. at 757 (plurality opinion); id. at 787 (Kennedy J., concurring in judgment).
[40] Id. at 810 (Stevens, J., dissenting).
[41] Id.
[42] Id.
[43] Id. at 732 (plurality opinion). Section 502(7) defines “navigable waters to mean “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7) (2012). Section 502(12) defines “discharge of a pollutant” to mean “any addition of any pollutant to navigable waters from any point source.” Id. § 1362(12).
[44] Rapanos, 547 U.S. at 732.
[45] Id.
[46] Id. at 741–42.
[47] Id. at 742.
[48] Id.
[49] Id. at 767 (Kennedy, J., concurring in judgment) (emphasis added).
[50] Id.
[51] Id. at 779–80.
[52] E.g., United States v. Robison, 505 F.3d 1208 (11th Cir. 2007) (applying Justice Kennedy’s test because it is the least disruptive to prior case law); United States v. Gerke, 464 F.3d 723 (7th Cir. 2006) (same); United States v. Donovan, 661 F.3d 174 (3d Cir. 2011) (finding jurisdiction under either Justice Kennedy’s or Justice Scalia’s test); United States v. Bailey, 571 F.3d 791 (8th Cir. 2009) (same); United States v. Johnson, 467 F.3d 56 (1st Cir. 2006) (same); United States v. Cundiff, 555 F.3d 200 (6th Cir. 2009) (finding jurisdiction in situations where at least Justice Kennedy’s test would be met); N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007) (same).
[53] U.S. Envtl. Prot. Agency & U.S. Dep’t of the Army, Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States (Dec. 2, 2008), https://perma.cc/XE8Q-UJ53.
[54] Rapanos, 547 U.S. at 780–81.
[55] Clean Water Rule: Definition of “Waters of the United States”, 80 Fed. Reg. 37,054 (June 29, 2015).
[56] E.g., Complaint, Texas v. U.S. Envtl. Prot. Agency, No. 3:15-cv-00162 (S.D. Tex. June 29, 2015); Complaint, North Dakota v. U.S. Envtl. Prot. Agency, No. 3:15-cv-00059-RRE-ARS (D.N.D. June 29, 2015); Complaint, Murray Energy Corp. v. U.S. Envtl. Prot. Agency, No. 1:15-cv-00110-IMK (N.D.W. Va. June 29, 2015).
[57] North Dakota v. U.S. Envt’l Prot. Agency, 127 F. Supp. 3d 1047, 1060 (2015)
[58] In re Clean Water Rule: Definition of “Waters of the United States,” 140 F. Supp. 3d 1340, 1340–41 (J.P.M.L. 2015).
[59] Id. at 1341.
[60] Federal Defendant’s Notice of Appeal of Ruling at 2 n.1, North Dakota v. U.S. Envtl. Prot. Agency, No. 3:15-cv-00059-RRE-ARS (D.N.D. Nov. 24, 2015), 2015 WL 10642813.
[61] Murray Energy Corp. v. U.S. Dep’t of Def. (In re U.S. Dep’t of Def.), 817 F.3d 261, 264 (6th Cir. 2016), cert. granted sub nom. Nat’l Ass’n of Mfrs. v. Dep’t of Def., 137 S. Ct. 811 (2017).
[62] Ohio v. U.S. Army Corps of Eng’rs (In re Envtl. Prot. Agency), 803 F.3d 804 (6th Cir. 2015).
[63] Murray Energy Corp., 817 F.3d at 264.
[64] Id. at 265; 33 U.S.C. § 1369(b)(1) (2012).
[65] Murray Energy Corp., 817 F.3d at 266, 270–71. Section 509(b)(1)(E) provides review of the Administrator’s action “in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title.” 33 U.S.C. § 1369(b)(1)(E) (2012). Section 509(b)(1)(F) providing review of the Administrator’s action “in issuing or denying any permit under section 1342 of this title.” Id. § 1369(b)(1)(F).
[66] Murray Energy Corp., 817 F.3d at 270.
[67] Id. at 272.
[68] Id. at 275 (Griffin, J., concurring in judgment) (citing Nat’l Cotton Council of Am. v. U.S. Envt’l Prot. Agency, 53 F.3d 927 (6th Cir. 2009)). In National Cotton Council of America, the Sixth Circuit held that section 509(b)(1)(F) authorizes review of regulations governing the issuance of permits. 53 F.3d at 933.
[69] Murray Energy Corp., 817 F.3d at 274 (majority opinion).
[70] Petition for a Writ of Certiorari, Nat’l Ass’n of Mfrs. v. U.S. Dep’t of Def., No. 16-299 (U.S. Sept. 2, 2016), 2016 WL 4698748.
[71] Id.
[72] Nat’l Ass’n of Mfrs (U.S. Apr. 6, 2017) (No. 16-299) (order further extending the time to file Petitioner’s Brief on the Merits to April 27, 2017).
[73] Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule, Exec. Order No. 13,778, § 1, 82 Fed. Reg. 12,497 (Mar. 3, 2017).
[74] Id. § 2(a).
[75] Id. § 3.
[76] Nat’l Ass’n of Mfrs, 2017 WL 1199467 (U.S. Apr. 3, 2017) (mem.) (order denying motion of federal respondents to hold the briefing schedule in abeyance).
[77] Los Angeles County v. Davis, 440 U.S. 625, 631 (1979) (citations and quotation marks omitted).
[78] Id.
[79] Id.
[80] Murphy v. Hunt, 455 U.S. 478, 482 (1982) (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam)). This exception is commonly known as the “capable of repetition, yet evading review” exception. Id.
[81] 672 F.3d 1160 (9th Cir. 2012).
[82] 5 U.S.C. §§ 551–559, 701–706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2012).
[83] 672 F.3d at 1164.
[84] 673 F.2d 425, 446 (D.C. Cir. 1982).
[85] Turtle Island, 672 F.3d. at 1168 (citing Consumer Energy, 673 F.2d at 446).
[86] Id. at 1169.
[87] Id.
[88] Id.
[89] Conservation Nw. v. Sherman, 715 F.3d 1181, 1187 (9th Cir. 2013).
[90] Turtle Island, 672 F.3d at 1167–69; Conservation Nw., 715 F.3d at 1187.
[91] Intention to Review and Rescind or Revise the Clean Water Rule, 82 Fed. Reg. 12,532 (Mar. 6, 2017).
[92] See Appalachian Power Co. v. U.S. Envtl. Prot. Agency, 208 F.3d 1015 (D.C. Cir. 2000).
[93] Consumer Energy, 673 F.2d at 445.
[94] Id. at 446.
[95] 463 U.S. 29 (1983).
[96] Id. at 42.
[97] Id. at 36–38.
[98] 556 U.S. 502 (2009).
[99] Id. at 514.
[100] Id. at 515.
[101] Id.
[102] Id.
[103] Id.
[104] Id. at 516.
[105] See generally Office of Research & Dev., U.S. Envtl Prot. Agency, EPA/600/R-14/475F, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (2015), https://perma.cc/7V2L-ZLQ8
[106] See Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 969 (9th Cir. 2015).
[107] Id. at 967 (internal quotations omitted).
[108] Id. (internal quotations omitted).
[109] Id. at 968.
[110] Id.
[111] Id.
[112] Id.
[113] Id.
[114] Id. at 969.
[115] 682 F.3d 1032 (D.C. Cir. 2012).
[116] Id. at 1037–38.
[117] Id. at 1038.
[118] Id. at 1036 (internal quotations omitted).
[119] Id.
[120] Id. at 1039.
[121] Id.
[122] Id.
[123] The President’s News Conference, 2016 Daily Comp Pres. Doc. 777, at 8–9 (Nov. 14, 2016).