On September 17th, 2013, US EPA released a massive 331 page draft report distilling peer reviewed science regarding “connectivity” of various sorts of American water bodies with larger bodies of waters, such as rivers and lakes. It also sent to the White House for review a draft proposed rule about how it and the Army Corps of Engineers would determine what sorts of waters would count as “waters of the United States” subject to federal jurisdiction under the Clean Water Act. Simultaneously, EPA (perhaps at the request of the White House) withdrew a draft 2011 “guidance” document regarding what “waters” could be protected; it had been in limbo for many months before the White House regulatory “czar,” the Office of Information and Regulatory Affairs (OIRA). So far, no one outside of the executive branch has seen the new proposed rule, and the science report is just a draft. Even under the most optimistic scenario, it will be months, perhaps years, before these draft proposals are finalized. Nevertheless, these steps have already provoked news attention, blistering attacks by legislators and industry groups, and applause by environmental groups. Why all the hoopla?
This blog provides context about these actions, explains why the stakes are indeed high, and flags the key issues and likely points of contention as this ongoing regulatory war unfolds. By way of disclosure, I should note that although I draw mostly on the study of the relevant legal materials and developments, I also draw from my own immersion in the issues. I co-authored a Supreme Court brief for a bi-partisan group of former US EPA Administrators in the Supreme Court’s Rapanos case and then subsequently testified several times before congressional committees about many of the questions discussed here. All of those involvements, however, were on an uncompensated pro bono basis. I’m writing this blog for CPR as a professor and member-scholar of the Center for Progressive Reform, not as counsel for any stakeholder in these battles.
When the issue of what sorts of “waters” are subject to federal protection—so called “jurisdictional” waters—last went before the Supreme Court in the 2006 Rapanos case, this seemingly obscure question under the Clean Water Act provoked dozens of amicus briefs from industry, environmentalists, governments, and various organizations. Although the Bush administration was often viewed as anti-environment, in Rapanos it offered a spirited defense of longstanding federal protections of America’s waters. Lines to hear the oral argument snaked around the Supreme Court. After the Court issued a confusing splintered ruling, congressional committees held at least four directly related sets of hearings about the decision’s implications, possible responses, and to debate proposed curative legislation. Even in the contentious world of Washington’s ongoing partisan gridlock, this much attention has been extraordinary.
But the attention and acrimony is proportional to the high stakes involved with the issue. Battles over what waters and areas at the margins of land and water are subject to federal jurisdiction will determine whether the US Clean Water Act’s (CWA) protections apply. And if the CWA applies to a disputed water, then pollution discharges require permits. Furthermore, the Act’s strong protective presumptions against dredging and filling—contained in Section 404--- kick in if a body of water is jurisdictional. Basically, where filling is not necessary, where it would cause significant harm to aquatic resources, or where risks are uncertain, placement of dredge and fill material in jurisdictional waters is prohibited.
Few people with a straight face can argue that protecting America’s rivers and wetlands is not a valuable goal, but lands near streams, rivers, and wetlands are also often among the most attractive places to build, farm, and develop. And since much of the US is blessed with abundant fresh water resources (especially in the East and Midwest), potentially protected waters can foul up hopes of homebuilders, farmers, and governments who want to put lands (or are they waters?) to profit-generating use. In other areas of the country, especially the West and Southwest, the opposite problem arises. In hot, arid climates, little will look like a body of water, but during periodic seasonal rains and flooding dry lands and riverbeds will often flow. Are these ephemeral and only intermittently wet areas protected? How about “headwaters” that start with small streams and rivulets but gradually join to feed lakes, rivers, and groundwater? And sometimes apparently isolated waters (such as prairie potholes, or Carolina bays, for example) may seem unconnected to the larger estuaries, wetlands, rivers and lakes that are indisputably jurisdictional, but still serve important functions related to the Clean Water Act’s goals of protecting the “chemical, physical, and biological integrity” of America’s waters.
Hence, many billions of dollars ride on what is land subject to ordinary development and what is “protected” water. Few regulatory battles have such a broad impact, from businesses and agricultural interests right down to the level of individual property owners who may find themselves subject to prohibitions on filling waters. EPA’s latest actions tie into a decade of skirmishing both over what can be protected, as well as into prevalent anti-regulatory narratives that mock environmental law and other areas of risk regulation as excessive, intrusive, and illogical. But once upon a time, bipartisan support for protection of waters prevailed. That legal consensus, however, has now crumbled in the face of a concerted attack on the CWA’s reach and several Supreme Court cases that collectively have created regulatory uncertainty.
The legal background
Despite current controversy, the law regarding protection of America’s waters was remarkably stable for roughly thirty years, regardless of who was in the White House or who controlled Congress. Although the CWA speaks of “navigable waters,” that term has since 1972 been defined in the statute as meaning “waters of the United States.” Those 1972 amendments of what is now called the Clean Water Act stated the goal “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. Sec. 1251(a). To that end, the statute prohibited discharges into waters unless allowed by a permit. Since 1972, and repeatedly reaffirmed in the Court’s last three major CWA cases concerning what is protected as a “water,” the law clearly protects waters that are not navigable in the usual sense of that term; they need not be traditional navigable waters in the sense of used by shipping. And for several decades, courts and regulators articulating the reach of the CWA mentioned congressional legislative history that indicated congressional intent to protect waters to the limits allowed under the US Constitution.
By the late 1970s, after some early litigation over the contours of the Clean Water Act’s protections, regulations issued by the Army Corps and US EPA set forth the criteria for determining whether particular types or bodies of water were federally protected. These regulations sought to protect not just the largest of waters, but others types of smaller waters based on rationales tied into their value and functions, as well as attention to the types of activities threatening the waters. This bi-partisan embrace of protection of America’s waters and tests for what was protected endured for several decades, including a unanimous decision of the Supreme Court in United States v. Riverside Bayview Homes, 474 U.S. 121 (1985), where the Court deferred to expert regulatory judgments drawing the lines between water and land and protecting wetlands that were not directly tied into rivers or other larger waters plied by ships.
That consensus crumbled starting with Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC) and then the Supreme Court’s ruling in United States v. Rapanos, 126 S. Ct. 2208 (2006) (Rapanos). The waters in SWANCC were so-called isolated waters, with the claim of federal jurisdiction resting mainly on use of those waters by migratory birds under guidance provided by a policy known as the Migratory Bird Rule. In a decisive break from the longstanding consensus protecting America’s waters and deference to expert regulators, the Court gave the Clean Water Act a limiting read and rejected the government’s claim of jurisdiction. It declined to show the usual deference to agency statutory interpretations, stating that concerns over protecting isolated waters due to use by migratory birds would go too far and be at the limit of federal constitutional power. Oddly, the Court acknowledged that the destructive activity was argued to be clearly economic activity and subject to federal jurisdiction, but sidestepped the argument. Important to constitutional arguments about the reach of the CWA, the Court did not declare the statute unconstitutional, or even flesh out why the particular jurisdiction was asserted to be at the bounds of federal power. Instead, the Court said a statutory clear statement was needed to justify federal protection of the sorts of waters at issue in SWANCC. Finding no such clear statement, the Court concluded that that the CWA did not apply to the waters at issue in the case. By eliminating from federal protection such “isolated waters” due to use by migratory birds, the extent and range of protected federal waters undoubtedly shrank. Despite other regulatory rationales for protecting some isolated waters, and despite criticisms from the environmental community, the Army Corps and EPA since 2001 went further in shrinking the Act’s protection than apparently required by SWANCC, conceding in post-Rapanos hearings that they basically no longer claim federal jurisdiction over isolated waters under other possible regulatory rationales. This regulatory forbearance has substantially reduced the extent of protected waters.
Like the 1985 Riverside Bayview Homes case, the 2006 Rapanos case involved questions of what sorts of tributaries and wetlands that are not traditional navigable waters are reached by the CWA. The reconfigured and more conservative Supreme Court, with newly appointed Chief Justice Roberts and Justice Alito, produced a fractured series of opinions in Rapanos. No single majority opinion speaks for five or more justices in this case. No five justice majority, in an opinion or in shared opinion rationales, rejects the now long-established protections of America’s waters. Rapanos undoubtedly, however, makes for tough legal analysis and a confused legal terrain.
The bottom lines of the various justices ended up fairly clear. The Corps’ assertion of jurisdiction was rejected and remanded. Deference to the Army Corps and EPA judgments did not do the trick. A majority joined that judgment, but not the opinion by Justice Scalia. In fact, there was no single majority opinion. Relying and building on SWANCC, the three justices joining the Scalia opinion (hence making a total of four justices) remained concerned about federalism values and the reach of the CWA. Justice Scalia’s opinion largely ignored regulators’ judgments in regulations and in the cases before the Court about why waters should be protected. Instead, relying as he often does on dictionary definitions, he parsed definitions that supported his view that only permanently flowing and (in my own paraphrase) seamlessly inter-connected waters ultimately reaching truly navigable waters could be subject to jurisdiction. That such a view would largely eliminate federal protections for vast swaths of the American West and Southwest either did not occur to him, or was of no concern. But he did not get a majority to join his opinion.
Justice Kennedy did not join the Scalia opinion, but was also unwilling simply to defer to regulatory judgments and was concerned with limitless claims of federal jurisdiction. In strong language, he rejected the federalism concerns voiced in the Scalia opinion, and also argued that Justice Scalia’s highly restrictive dictionary-driven approach lacked justification. He called for protection of waters that have a “significant nexus” to more traditionally navigable waters, and also called for attention to waters that, even if small, might in aggregate perform important functions. He also talked about the many ways waters—whether streams or wetlands-- can serve important functions linked to the CWA’s integrity goals. Kennedy’s opinion embraced protecting some waters as a category, but then examining more debatable or allegedly marginal waters through more individualized assessments. He anticipated that even under his “significant nexus” test, some waters could be categorically protected “through regulation.” Chief Justice Roberts called on regulators to resolve the uncertainty by issuing a clear new rule sorting out what waters were protected, but he too lacked a supportive majority. Four dissenters, speaking in a more unified voice through an opinion by Justice Stevens, argued that deference to expert regulatory judgments remained essential. The four dissenters, however, also indicated that the waters that they would protect would include the waters protected by Justice Scalia and his allies, as well as waters that Justice Kennedy indicated deserved protection.
This splintered set of opinions bred immediate confusion, but when the dust cleared and scholars had studied how to sort out what opinions provide “the law,” it became clear that Justice Kennedy’s opinion, as the bridging opinion that acted as a sort of common denominator, provided the most authoritative opinion. Regulators then started looking for the existence of a “significant nexus.” But because eight justices also agreed that permanent and interconnected waters were also subject to federal jurisdiction (as Justice Scalia’s opinion argued), regulators and then most courts said that both “significant nexus” waters and permanent and interconnected waters were subject to federal protection.
In 2011, EPA and the Army Corps sent over to the White House, via OIRA, a proposed guidance document that sought to sort out and clarify this confusion in the law. It was anticipated eventually to supplant a 2008 guidance that had met with substantial criticism from all sides. Although the 2011 guidance contained some questionable and perhaps unduly limiting language, environmentalists generally saw it as a step in the right direction. Industry groups, however, unleashed a torrent of critical comments, claiming it overreached and again made arguments and claims that had met with a bit of success in Rapanos. And the guidance document then languished in its tentative proposed state. Despite efforts to pass clarifying corrective legislation intended to return the law to where it stood after the Riverside Bayview Homes case, mainly through a bill called the Clean Water Restoration Act, it was never was put to a vote. In the meantime, questions about what was protected unavoidably kept arising, and regulators continued to act in the face of uncertainty.
The September 2013 Connectivity Report
Now EPA and the Army Corps have reentered the fray with their two recent actions. We don’t yet know the terms of the draft regulation. Statements accompanying its release, however, already state that several forms of temporary and often human-created waters are not claimed to be jurisdictional. This one revelation reveals that EPA and the Corps understand they have to leave some debatable waters unprotected; limitless jurisdiction will not be claimed. The rest will have to wait.
The massive draft connectivity science report, however, was released and likely indicates the strategy at play here. Recall that Justice Kennedy called for establishment of a “significant nexus,” four dissenters called for deference to expert regulatory scientific judgments, and Chief Justice Roberts called for a clarifying regulation. And the Court and many critics of allegedly overbearing federal regulation have repeatedly called for “sound” and “peer reviewed” science. Furthermore, both SWANCC and Rapanos contain an undercurrent of constitutional concern about limitless claims of federal regulatory power.
The massive scientific report is likely to be an answer to these concerns and criticisms. If peer reviewed science documents why and how particular sorts of waters are indeed interconnected and serve valuable functions consistent with the Clean Water Act’s goals, and those functions also have economic or commercial value and also are of broad impact and importance, then the report provides a powerful response. Furthermore, because most threats to waters subject to jurisdictional debate come from activity that is undoubtedly commercial in nature, the Constitution should not provide a barrier here. The main goal of a protective regulatory response probably only needs to focus on creating, through science, the basis for claims that particular types of waters can be federally protected under the goals and language of the CWA. Science can answer and overwhelm claims that waters are marginal or simply do not matter. An avalanche of science is a potent means to reduce regulatory uncertainty and anticipate later litigation and judicial skepticism.
Even without revelation of the draft rule, some industry groups are already crying foul and asserting that the rule goes too far. But taking a more measured view, what will happen next and what are the moves and countermoves we can anticipate in this ongoing regulatory war?
First, supporters and detractors will comment on the draft report and a science board will assess those criticisms, likely leading to adjustments. Eventually, OIRA will likely authorize the release of the draft rule, starting the notice and comment process. Because these battles have led all sides to reveal their best arguments already, especially in comments on the 2011 guidance, and EPA, the Corps, and even OIRA are familiar with them; it is unlikely that the regulatory process will reveal something major or unexpected. The bigger question is one of political will: In the face of substantial criticism and threats of economic harm that opponents of the CWA will raise, will the White House allow EPA to finalize the rule? That is the tougher question.
But a few inside game points are worth mentioning. Critics will likely question if a regulation is illegal effrontery, failing to heed the edicts of the Supreme Court. But little from the Supreme Court on the “waters” question is settled and beyond rejoinder. Riverside Bayview Homes remains good law and protects many waters. It embraces deference to expert regulatory line drawing. SWANCC does reject protecting isolated waters based on the rationale of migratory bird use, but that is a very limited carve-out of federal jurisdiction. No case has thrown out the numerous other regulatory rationales for protecting other types of waters and even sometimes isolated waters based on other rationales. Rapanos’ splintered opinions leave little settled, but do create two majority blocks declaring particular types of waters protected. No clear single opinion declares any new categories of water off limits.
But, critics will likely argue, Justice Kennedy’s “significant nexus” test calls for case-by-case analysis, not mere deference to categorical regulatory judgments. This argument is unpersuasive. First, many hundreds of cases call for judicial deference to expert agency science and science and regulatory judgments are repeatedly mentioned in Kennedy’s opinion. Second, even in Rapanos, the four dissenters called for deference, and Chief Justice Roberts asked for a clarifying rulemaking. Third, Kennedy’s test nowhere rejects a role for clarifying regulation and the role of science. Indeed, he anticipates that some questions of jurisdiction could be resolved via policymaking in the form of a notice and comment rulemaking and repeatedly draws on existing regulations to explain why certain waters deserve protection. Even where he most clearly embraces a place for case-by-case assessment to determine federal jurisdiction, he provides an opening, qualifying phrase: “absent more specific regulation.” Hence six justices in Rapanos embraced a clarification of the law via a notice and comment rulemaking. Moreover, under quite established administrative law principles, even a regulatory action that has to be made on a case-by-case basis can rest on regulations that take some otherwise debatable regulatory and science judgments off the table. Basically, a massive scientific report and accompanying rule could, at a minimum, reduce the need for case-by-case regulator proof of ecological significance and connectivity.
The battle is far from over, but this latest salvo by US EPA and the Army Corps could, over the long term, prove a way to settle this last decade of regulatory uncertainty. The science about the functions and values of waters is very much in line with the protective presumptions that for decades were the law of the land, and hence the law of America’s waters. Even in a time of partisan gridlock and often-politicized courts, strong peer reviewed science and expert regulatory judgments can counteract hyperbole and phantom claims of irrational regulatory overreach. The unstable regulatory waters of the past decade over the reach of the Clean Water Act may soon be quieted.