William W. Buzbee, Professor of Law, Georgetown University Law Center, offers his comments here regarding the May 27, 2015 released final rule and accompanying materials regarding what waters are federally protected “waters of the United States.” Professor Buzbee is also a founding member-scholar of the Center for Progressive Reform. He has testified repeatedly before congressional committees about these issues and in 2006 served as co-counsel for an unprecedented bipartisan amicus brief of former US EPA Administrators filed with the Supreme Court. Wwb11@law.georgetown.edu. Office phone (202) 661-6536.
The United States Environmental Protection Agency and the Army Corps of Engineers on May 27, 2015 released their much awaited and debated final rule articulating what are federally protected jurisdictional “waters of the United States.” Before anyone outside the executive branch could have possibly read the 700 plus pages of legal analysis in the new “Waters Rule” (also referred to as the Clean Water Rule), supporters were lauding it and critics were once again making claims of limitless federal power. House Speaker John Boehner called it a “tyrannical” action. The New York Times provided little analysis of the Rule’s substance, instead quoting partisans and especially regulatory critics about their views. Most environmental groups praised the action, but one group, the Waterkeeper Alliance, criticized the final rule as unduly weak.
This essay analyzes the final Waters Rule, highlighting changes and choices and also assessing clashing claims about the Rule. Perhaps unsurprisingly in this time of political gridlock and partisan acrimony, recent strident claims of regulatory overreach have little basis in reality, especially measured against consensus approaches of past presidents and abundant court rulings since the 1970s. In reality, the new Waters Rule restores some areas of jurisdiction lost due to regulatory forbearance and uncertainty after three Supreme Court cases created legal confusion. Nevertheless, the new rule’s jurisdictional reach actually is narrower than historically claimed by regulators or upheld in dozens of court decisions.
Moreover, for the first time, codified regulations about jurisdictional waters include an array of explicit exclusions and definitions that have the effect of more clearly demarking the limits of federal regulatory power. And, importantly, explanatory materials forthrightly provide additional language about how many sorts of common agricultural activities will not give rise to liability. The net effect is a pragmatic substantial restoration of historically claimed jurisdiction. Recent Supreme Court language and a massive scientific report surveying peer reviewed studies about connectivity and functions of waters are again and again at the heart of what EPA and the Corps ultimately decided to protect and leave unprotected by federal law. Could EPA and the Corps have gone further? They probably could have under the law and science, but congressional threats of a legislative override or a weakening of the Clean Water Act perhaps led the agencies to refrain from a maximized assertion of possible jurisdiction. Legislative overrides may still be pursued for political gain, but if reality matters, then the balanced final Waters Rule should calm the political waters.
Why the scope of “waters of the United States” matters
The issue of what are protected “waters” is the linchpin of federal power under the Clean Water Act; only jurisdictional waters are subject to prohibitions, protections, and permit-based regimes pertaining to industrial pollution discharges, oil spills, and wetlands protection. The rule is not just about wetlands or small or attenuated waters, but the reach of virtually the whole law. Since regulations issued in 1977 and even earlier court decisions, federal power has extended to waters that are not “navigable” in the sense of used by ships engaged in commerce. Courts and then regulations focused also on the anti-pollution aims of the law and the law’s explicit goals of protecting and restoring the chemical, physical, and biological integrity of America’s waters. Furthermore, building on these goals and legislative history, regulators and courts for decades also could rely on a commerce-linked regulatory sweep-up provision. Even waters that might be the subject of debate due to their attenuated link to traditional navigable waters could be reached if commerce-linked activity caused harms to such waters or commerce could be harmed by their degradation. And these Code of Federal Regulations (CFR) materials about protected waters remained substantively the same until yesterday’s amendments, although confusion about the permissible scope of federal jurisdiction was sowed by several Supreme Court decisions discussed below.
The Waters Rule, or perhaps more accurately the Clean Water Act itself, has triggered opposition and persistent efforts to weaken it for two reasons. First, by not focusing only on large industrial sources, but reaching down to the actions of individuals and choices about uses of land and actions around waters, the Clean Water Act has long been in the cross hairs of the property rights movement. In addition, after the Supreme Court in a series of decisions since the early 1990s started cutting back on the reach of federal power under the Commerce Clause of the US Constitution, anti-regulatory groups have seen the Clean Water Act as ripe for attack. Since that federalism revival, attacks on the Act have often focused both on weakening the law and on expanding doctrinal limits on federal Commerce Clause power. These constitutionally grounded arguments have not met with outright success, but continue to be part of argumentation over the law.
From the old to the new regulations
The most important question is what the new finalized Waters Rule actually does to the law. And that involves assessment of three separate baselines: the regulations themselves in the Code of Federal Regulations; the law as enforced and interpreted by agencies and the courts; and changes made in the Final Rule from the April 2014 Proposed Rule.
The 1977 regulations and emerging uncertainty
The CFR regulations since 1977 have included only language about what is covered, plus the broad commerce-linked sweep-up provision, with no language specifying exclusions. Those regulations covered many sort of waters that some viewed as too attenuated in their linkages to traditional navigable waters (for example, intrastate lakes, intermittent streams, prairie potholes, and sloughs), but nonetheless remained in place and were supported by both Republican and Democratic administrations for decades. They also received a ringing defense by the George W. Bush administration before the Supreme Court in 2006. The law as enforced and implemented was, until 2001, expansive and quite consistent with the regulation’s language and the Act’s broad protective goals. In fact, in 1985, in the Riverside Bayview Homes case, the Supreme Court unanimously upheld application of regulations protecting “adjacent” wetlands, deferring to expert regulatory line drawing since the land-water border is actually a continuum.
However, in 2001, in the Solid Waste Agency of Northern Cook County (SWANCC) decision, the Supreme Court held that the federal government went too far when it sought to protect isolated waters due to their use by migratory birds. The Court’s language was a bit murky, however, alluding to constitutional concerns and federalism principles without indicating why there were such concerns under the case’s actual facts. The Court used those concerns to limit federal power and restore greater significance to the word “navigable” in the Act, yet without declaring anything unconstitutional. That decision spawned more challenges, with the 2006 Rapanos case creating yet more confusion. Again the challenge was to claims of jurisdiction over allegedly attenuated sorts of waters, with federalism and constitutional concerns part of the advocacy. The Supreme Court splintered, however, with no single majority opinion, two different numerical majorities indicating what types of waters could be protected, and no majority finding any constitutional infirmity. An opinion by Justice Kennedy, under Supreme Court doctrine, articulated the now authoritative “significant nexus” test for determining what waters are protected. (Those two words first appeared in passing in SWANCC.) That test focuses on waters’ functions, both alone and in combination with other waters, and the law’s protective integrity goals. SWANCC and Rapanos created regulatory confusion that, in the law’s actual implementation and enforcement, led regulators to cut back on what waters were protected. But clear Supreme Court majorities and administrations of both parties, plus environmentalists and industry, saw amended clarified regulations as needed to reduce this uncertainty and perhaps restore some waters to federal protection.
The April 2014 proposed rule
The proposed rule, issued in April of 2014, responded to attacks and uncertainty by jettisoning some central elements of the old regulations. In particular, the lengthy commerce-linked sweep-up provisions was proposed to be deleted. In its place, EPA and the Corps would link waters protections to what “significant nexus” language would allow and, of especial importance, to what the newly compiled massive survey report of peer reviewed science indicated about various sorts of waters’ functions and connectivity. That report itself was open to public comment and peer review and was finalized in January of 2015. The proposed rule included new definitions of what would be protected, with those definitions impliedly also indicating the limits of federal power. But the proposed rule’s broad language about tributaries and ditches led to loud claims of limitless federal power. Both House and Senate committees advanced legislation to preclude or invalidate the Waters rule, even before its issuance in final form.
The May 27, 2015 final “Clean Water Rule”
The new final Waters Rule and accompanying materials make quite a few changes, most in response to critics in ways that limit the reach of federal power. But it is not all surrender: the broad coverage of tributaries and adjacent waters and linked geographical limitations should protect most waters that are of importance. But those limitations will also, in application, surely lead to some losses in protection. Still, this combination of science-based line drawing and new explicit exclusions should both restore protections where they most matter and also alleviate critics’ concerns about limitless jurisdiction. (Of course, if the yelling is just for partisan political gain or a way for lobbying associations to maintain a high profile, then nothing the agencies proposed short of outright surrender would have silenced the critics.)
The basic logic of the final Waters rule is to reach traditional navigable waters, interstate waters and wetlands, and the territorial seas (collectively called a(1)-(3) waters), impoundments of waters of the United States, and also all tributaries of a(1)-(3) waters (collectively creating a(1)-(5) waters. In addition “adjacent” waters to a(1)-(5) waters are also protected. The proposed rule had left uncertain how to deal with a handful of categories of waters that in various regions are prevalent and important, but do not clearly fall into a(1)-(5) water categories. The final rule chose to protect most of those waters (prairie potholes, Carolina bays and Delmarva bays, pocosins, Western vernal pools, and Texas coastal prairie wetlands), calling them “similarly situated” so under the significant nexus test they would be looked at with other similar waters in a watershed. Their protection is not automatic; case-by-case “significant nexus” analysis is required before such a water will be deemed protected. In addition, in a potentially important change, the final rule provides that waters within a 100 year floodplain or within 4000 feet of a type a(1)-(5) water can be protected if they surmount a case-by-case significant nexus analysis. Explanatory materials make clear that this floodplain/4000 feet language is meant to create a bright line “limitation” and “boundary,” thereby addressing claims of limitless power with a new explicit limit.
Other language further limits federal power. In addition to deleting the commerce sweep-up provision, the final Waters rule codifies a number of types of waters as excluded, namely waste treatment systems, prior converted cropland, artificially irrigated areas that would revert to dry land, other artificial and constructed waters and also ornamental pools, as well as depressions, erosional features (of specified sorts), puddles, groundwater, constructed stormwater control features, waste water recycling structures, and several sorts of ditches. Most of these types of waters had been viewed as not covered, but this had not previously been stated in any explicit rule. The new ditch exclusions are especially important in light of the many criticisms of the proposal for its coverage of ditches. If only carrying ephemeral or intermittent flows and not in or a relocated tributary or draining wetlands, and if not flowing directly, or through another water, into a water, then the ditches are not subject to federal jurisdiction.
These numerous deletions and exclusions are a major change in Clean Water Act regulations. Accompanying explanatory and responsive materials in numerous places laud the agriculture sector and discuss why unexpected or expansive liabilities should not arise. Although not in the actual final rule, this additional language of reassurance will surely be used in the field and in the courts if conflicts arise.
Probably the rule’s most expansive reach is in its coverage of adjacent waters and tributaries. Adjacent waters are covered if they are “neighboring,” and neighboring is defined by specified distances. Tributaries are expansively defined, including both natural water features and man-altered or man-made waters; the key is that a water contributes flow to another water and has physical indicators of a bed and banks and ordinary high water mark. Implicit in the rule’s text and more clearly stated in the accompanying explanations is that a tributary need not flow all of the time, plus breaks in such tributaries’ flows do not necessarily remove them from jurisdiction. The “features,” ‘bed and banks” and “high water mark” are instead proxies or indicators of where a water exists, hence both distinguishing waters from land and also protecting waters in areas that are often dry (especially the Southwest). The agencies declined to eliminate protections for “ephemeral” and “intermittent” streams, referring to scientific evidence gathered in the Science Report establishing their importance, and similarly refused to exclude from federal jurisdiction all “constructed tributaries.” As the agencies’ explanatory materials discuss, many waters (generally tributaries) are in places constructed and channelized and could not be carved out from federal power without a major weakening of the law and resulting degradation of water quality.
Another important codification is greater specificity in the final rule about what sorts of functions are relevant to “significant nexus” analysis. Many are derived from Justice Kennedy’s authoritative “significant nexus” discussion in Rapanos, but they are also drawn from the massive Science Report.
Losses of protection?
The exclusions, deletions, and specifics about what is covered (and hence what is not) collectively add up to substantial carveouts and exclusions from federal power. If the agencies had followed the Science Report’s wisdom throughout, more would be protected in the final rule. Nevertheless, the Waters Rule generally reflects pragmatic choices. EPA and the Army Corps chose to balance science, Court precedents, and on-the-ground experience, and probably also an assessment of political reality and risk of corrective legislation, to try and protect what is most important without protecting everything or creating a new regulatory morass. Whether distance-based categorical carveouts or exclusions like that for waste treatment systems will prove problematic will probably only become clear as the rules are applied to the nation’s varied landscape and hydrology.
The future of the final Clean Water Rule?
Once the rule is officially published, then court challenges will surely follow. The agencies’ careful and accurate parsing of the law, extensive reliance on peer reviewed science, and responsiveness to criticisms in the rulemaking process should help the rule in court. But judges also can be political, so much will hinge on who hears the case. Still, to the extent careful regulatory work can make a difference, this rulemaking and accompanying documents are exemplary. However, recent claims that EPA excessively championed the rule, allegedly in violation of anti-lobbying laws, may become part of a separate or linked court challenge.
The bigger risk is that Congress will pass a bill that invalidates this final rule or, even worse, uses concern over this rule to reduce the scope of the Clean Water Act. A recent Senate bill proposed by Senator Barasso both seeks to invalidate the rule and weaken the Clean Water Act. The White House has indicated a likely veto of such legislation, but if Congress passes such a bill it will surely send it to the White House with some other piece of legislation supported by the President.
Despite the heated rhetoric of opponents, the new Clean Water Rule contains sound, pragmatic choices. When agencies carefully respect what statutes say, what court precedents require, and what the science shows, plus they carefully respond to critical comments, then they deserve applause. The Clean Water Act is one of America’s great success stories. The final Clean Water Rule should help restore waters lost from jurisdiction since the Supreme Court created legal confusion, yet also provide greater clarity about what is not covered.. All should benefit from the rule’s clarity and science-based choices.