New Water Rule Isn’t The End of The Story

Originally published in the Los Angeles/San Francisco Daily Journal, June, 9, 2015. Copyright 2015 Daily Journal Corporation, reprinted with permission.

It appears that Godot has finally made an appearance. The U.S. Environmental Protection Agency and U.S. Army Corps of Engineers released their final rule, years in the making, defining “waters of the United States” under the Clean Water Act. That regulation, which was finalized on May 27 but has yet to be published in the Federal Register, garnered over 1 million public comments, and follows a decade-long effort by the EPA and the Corps to revise the “waters of the United States” definition after U.S. Supreme Court rulings significantly reined in what had been the government’s exercise of broad jurisdiction under the Clean Water Act.

The new rule substantially updates the methodology the U.S. will use to determine whether it has jurisdiction over waters of the United States (including wetlands). Of significant concern on the part of the regulated community is that the new rule is expected to extend the geographic extent of the government’s claim of jurisdiction under the Clean Water Act.

The final rule is the byproduct of a trilogy of Supreme Court Clean Water Act jurisdiction cases. As evidenced by those cases, the court has over time significantly narrowed the scope of federal authority. In United States v. Riverside Bayview Homes, 474 U.S. 121 (1985), and consistent with most lower court decisions up to that time that had broadly interpreted Clean Water Act jurisdiction, the court issued an unanimous opinion deferring to the Corps’ ecological judgment and upholding the inclusion of certain adjacent wetlands in the regulatory definition of “waters of the United States.”

However, in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), 531 U.S. 159 (2001), the court took a sharp turn and, in a 5-4 ruling, struck down the government’s interpretation that, on the basis of the commerce clause, federal jurisdiction extended to non-navigable intrastate ponds that supported migratory bird populations.

Finally, in Rapanos v. United States, 547 U.S. 715 (2006), an ideologically fragmented 4-4-1 court addressed the extent of permissible CWA jurisdiction over waters that are not navigable in a traditional sense. Whereas Justice Antonin Scalia’s plurality opinion in Rapanos looked primarily to a dictionary definition of “navigable waters” and held that federal jurisdiction could extend over non-navigable waters only if they exhibit a relatively permanent flow or, in the case of wetlands, where there is a continuous surface water connection between the wetland and a relatively permanent waterbody, the dissent authored by Justice John Paul Stevens took a much broader, pre-SWANCC view of jurisdiction. It was Justice Anthony Kennedy’s concurring opinion, however, that ruled the day, and held that CWA jurisdiction extends to wetlands and non-navigable waterbodies provided that there is a “significant nexus” to a traditionally navigable waterway.

Of note in his concurrence in Rapanos, and critical to the EPA and the Corps’ subsequent regulatory effort, was Chief Justice John Roberts’ express displeasure over the agencies’ failure to undertake rulemaking following the SWANCC decision. Roberts noted that instead of “providing guidance meriting deference under our generous standards, the Corps chose to adhere to its essentially boundless view of the scope of its power.” The EPA and the Corps have now responded to that admonition, but perhaps not in a way the chief justice may have envisioned.

The rule centers around Justice Kennedy’s “significant nexus” concept articulated in Rapanos. In developing the rule, the EPA enlisted its Office of Research and Development to assess the scientific basis of “significant nexus.” The office reviewed over 1,200 peer-reviewed publications, culminating in a report – “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence” – finalized in early 2015. The EPA relied on this scientific assessment, and will likely look to Chevron deference from the courts, to support the broad exercise of jurisdiction delineated by the rule.

As a general matter, the core commerce clause touchstones of jurisdiction associated with “traditional navigable waters” remain as they always have – waters that are used or have been used in interstate or foreign commerce, interstate waters and wetlands, territorial seas and impoundments or tributaries of those waters. However, it is the determination of federal jurisdiction over tributaries to those waters, waters and wetlands adjacent to those waters, and “other waters,” that has been the high point of contention, and likely will remain so. Although the EPA suggests, among other things, that the rule better defines tributaries, provides certainty over which “nearby waters” are jurisdictional, and “reduces the use of case-specific analysis of waters,” it is uncertain, to say the least, that the rule will provide that clarity.

Specifically, the term “adjacent” is now defined to add “neighboring” as one of its triggers. “Neighboring” includes waters located within the riparian area or floodplain of the traditional navigable waters or their tributaries, or waters with a shallow subsurface hydrologic connection or confined surface connection to otherwise jurisdictional waters. The definition of “floodplains,” in turn, is quite broad and may result in an exceedingly wide geographic reach that will factor into jurisdictional determinations.

Further, “tributary” is defined as a water physically characterized by the presence of a bed and banks and ordinary high water mark that contributes flow, directly or indirectly, to an otherwise jurisdictional water. Significantly, the rule includes as tributaries wetlands, lakes and ponds, even in the absence of a bed and banks or ordinary high water mark, if they directly or indirectly contribute flow to otherwise jurisdictional waters.

In addition, even if a water or wetland does not include any of those aforementioned attributes, such “other waters” can still be subject to Clean Water Act jurisdiction on a case-specific basis if “those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexus” to waters used or that had been used in interstate or foreign commerce, interstate waters and wetlands, territorial seas. In somewhat circular reasoning, the term “significant nexus” is defined as a water, including wetlands that, either alone or in combination with other similarly situated waters in the region (i.e., the watershed that drains to the nearest jurisdictional water), significantly affects the chemical, physical or biological integrity of the otherwise jurisdictional water. The rule goes on to state that “similarly situated” waters and wetlands are those that “perform similar functions and are located sufficiently close together or sufficiently close to a “water of the United States” so that they can be evaluated as a single landscape unit. Specifically, any “similarly situated” water within 4,000 feet of the high tide line or ordinary high water mark or any other jurisdictional water, or within the 100-year floodplain of a traditionally navigable water, will be jurisdictional.

Ultimately, and contrary to the EPA’s view, it would appear that interpreting “waters of the United States” under the final rule is ripe for confusion. Of even greater significance to the regulated community is that the geographic extent of jurisdiction under the Clean Water Act will likely be greatly expanded by virtue of the new rule. Political blowback is already in high gear in conservative quarters on Capitol Hill, and there assuredly will be legal challenges to the rule. Given the Supreme Court’s interest in this issue, “waters of the United States” seems likely to land on its docket yet again. Perhaps the chief justice is being reminded of the old axiom, “be careful what you wish for.”