ELI Report
Author
Nick Collins - Environmental Law Institute
Environmental Law Institute
Current Issue
November-December 2023
Issue
6

Research Paper Filling the gaps in state programs to protect Waters of the United States in a post-Sackett world

The wake of May’s Supreme Court decision in Sackett v. EPA, combined with a rule change issued by the agency in August, has shifted the legal protections afforded to Waters of the United States, known commonly as WOTUS, under the federal Clean Water Act. These actions place a substantial burden on state and tribal regulators and legislators to protect waters within their jurisdiction.

In May, ELI published a research paper titled Filling the Gaps: Strategies for States/Tribes for Protection of Non-WOTUS Waters. The study identifies which states are reliant on the federal agency’s definition for protection of freshwater wetlands and tributaries from dredge and fill, which states have limited coverage for non-WOTUS waters, and which states have comprehensive permitting programs applicable to their waters that may fall outside of federal coverage under the act.

The report goes in depth into states with fairly comprehensive permitting programs applicable to their waters (i.e., wetlands) including those that fall outside the coverage of the federal CWA. These are California, Connecticut, Florida, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, and Wisconsin. This section also makes comparisons between states in this category, demonstrating how the coverage of these programs varies.

The study includes a number of states that have adopted specialized laws and regulations, or in some states case-by-case review practices, that are expressly intended to fill identified gaps in federal CWA coverage. These states provide some regulatory protections for identified classes of non-federal waters, including certain of their nontidal wetlands.

Some states provide regulatory authority and funding to specific activities affecting protected waters. The seven states with limited or gap-filling regulatory coverage are: Arizona, Illinois, Indiana, North Carolina, Ohio, West Virginia, and Wyoming, plus the District of Columbia. The report includes a comparative analysis among all of these regulations.

In addition to statewide programs, the report looks at alternative or supplemental approaches that may protect non-WOTUS waters. These approaches include state or local regulations of activities to protect buffer areas adjacent to waters and wetlands; local regulation of wetlands/waters (as authorized by state law or by home rule); regulation of particular activities rather than of specified waters; conservation planning; water quality standards for certain non-WOTUS water; conservation banking with protection for wetlands/waters; voluntary conservation and restoration programs; and hazard mitigation or resilience.

The study also includes an analysis of tribal wetlands programs. The CWA authorizes EPA to treat tribes with reservations as similar to states, allowing these tribes to administer regulatory programs and receive grants under CWA authorities.

Tribes may also develop regulatory programs under tribal law and create non-regulatory programs to protect, manage, and restore wetlands on their lands. More than 40 tribes have submitted independent wetland program plans. Tribal wetland programs, as do state programs, vary widely.

A good deal of investment is needed at the state and local level to ensure that the critical functions provided by wetlands and other waters are not lost.

TSCA conference takes up reducing PFAS in the environment

The Toxic Substances Control Act Annual Conference is hosted by ELI, Bergeson & Campbell, P.C., and the George Washington University Milken Institute School of Public Health. Each year, the conference brings together premiere TSCA experts to reflect on challenges and accomplishments since the implementation of the 2016 Lautenberg Amendments.

This year, Lynn Bergeson and Bob Sussman started off the program with broad reflections on the current state of TSCA implementation. Following that, EPA Assistant Administrator Michal Ilana Freedhoff gave a keynote discussion, announcing the EPA Framework for Addressing New PFAS and New Uses of PFAS.

The first panel discussed various aspects of EPA’s risk evaluation of chemical substances. The panelists covered the agency’s potential use of European Union REACH data, EPA’s use of new approach methodologies, the effectiveness of a “whole chemical approach” to risk determinations, and the incorporation of cumulative risk assessment in TSCA risk evaluation.

The second panel discussed EPA’s authority under the Lautenberg Amendments to manage chemical risks. The discussion included how the agency manages workplace risks, enforcement mechanisms for risk management restrictions, whether EPA’s risk management rulemakings are adequately addressing environmental justice concerns, and potential legal challenges to final risk management rules.

This year’s conference featured five former assistant administrators who oversaw EPA’s toxics office.

The third panel discussed new-chemical review under the 2016 revision of TSCA. Panelists covered transparency, processes to guide new-chemical review, new approaches to assess chemical risks, concerns for workers and fenceline communities, and recent trends with EPA’s review of new-chemical substances.

The final panel discussion covered the unique role of TSCA, as compared to other EPA programs, in addressing the issue of PFAS. Experts discussed the agency’s working definition of PFAS, the effectiveness of TSCA implementation in addressing PFAS, whether PFAS should be regulated on a category or chemical-specific basis, and more.

Speakers included Shari Barash, Lynn Bergeson, Madison Calhoun, Jordan Diamond, Maria Doa, Emily Donovan, Alexandra Dapolito Dunn, Richard E. Engler, David Fisher, Michal Ilana Freedhoff, Eve Garnet, Lynn Goldman, Ben Grumbles, Rashmi Joglekar, Jim Jones, Jonathan Kalmuss-Katz, Matt Klasen, Pamela Miller, Jeffery Morris, W. Caffey Norman, Steve Owens, Steve Risotto, Daniel Rosenberg, Jennifer Sass, Robert Sussman, Brian Symmes, and Meredith Williams.

ELI members can access a recording of the entire TSCA conference and all associated materials as part of their membership on the ELI website.

Nashville signs order on reducing food waste

A new Model Executive Order on Municipal Leadership on Food Waste Reduction developed by the Environmental Law Institute and Natural Resources Defense Council can help localities reduce the amount of food wasted throughout municipal operations, highlight the importance of reducing food waste, and demonstrate food waste reduction measures that businesses and other entities may voluntarily replicate.

The model was developed as part of ELI’s Food Waste Initiative, which aims to help stakeholders meet U.S. food loss and waste goals by implementing public policies and public-private initiatives to prevent food waste, increase surplus food rescue, and expand scrap recycling.

Up to 40 percent of food in the United States is wasted. Local governments are well-positioned to address the problem. Given the large amount of food that some municipalities procure and the many people that they employ, the impact of food waste reduction measures in municipal operations can be substantial.

The model offers a range of municipal measures to reduce food waste that include staff training and hiring, procurement policies, and employee benefits.

Recently, Nashville adopted a resolution in support of two key measures in the model: a food waste reduction goal and adoption of best food waste reduction practices by municipal departments.

Filling the Gaps in State Programs to Protect WOTUS

ELI Report
Author
Rachel Jean-Baptiste - Environmental Law Institute
Environmental Law Institute
Current Issue
September-October 2023
Issue
5

National Wetlands Awards Celebrating six champions of the country’s invaluable aquatic ecosystems and wildlife

ELI’s National Wetlands Awards are presented annually to individuals who have excelled in wetlands protection, restoration, and education. The winners are selected by a committee composed of experts from around the country, including representatives from each federal supporting agency, the conservation and business communities, and others.

This year’s ceremony was held on May 16 at the rooftop of Beveridge & Diamond, PC, in Washington, D.C. Individuals from the Environmental Protection Agency, Fish and Wildlife Service, Baker Botts, Hogan Lovells, and ELI presented awards. One winner, Adam Davis, attended virtually.

Opening remarks were delivered by ELI President Jordan Diamond. Former ELI President John Cruden made remarks in memory of his former colleague the late Stephen Samuels, a retired Justice Department attorney and one of the government’s leading experts on the Clean Water Act and its wetlands program.

A recording of the ceremony, podcast interviews with the 2023 winners, and additional details are available here.

Award for Business Leadership. Adam Davis is a co-founder and managing partner at Ecosystem Investment Partners, which has restored over 48,000 acres of wetlands and 220 miles of streams since its founding in 2006. Adam is involved in all aspects of the business, from investor relations to project implementation to government affairs.

Adam has dedicated his career to aligning business interests with environmental outcomes, and he is an advocate for new types of public-private partnerships that support ecological restoration. For example, he led the effort for his firm to partner with the California Department of Water Resources on the largest tidal wetland restoration project in state history.

Adam and his wife, Sara, live in San Rafael, California. He has served on the board of the national industry trade association, the Ecological Restoration Business Association, and helped to create the California affiliate, CalERBA. Adam has a B.A. in Africana Studies from Cornell University.

Award for Promoting Awareness. Matt Hough is the manager of conservation programs for Kansas, at Ducks Unlimited, a position he accepted in 2017 after joining the organization six years earlier as a regional biologist.

In his current role, Matt heads DU’s conservation program for the state, supervising wildlife biology staff and overseeing the organization’s state budget and fundraising. Matt works with various partners in Kansas to deliver a diverse program of restoration, enhancement, protection, and acquisition projects. He has also been active in DU’s growing Ecosystem Services working group, especially focused on wetlands and their role in groundwater recharge and water efficiency.

Matt serves on the boards of both the Playa Lake Joint Venture and Kansas Alliance for Wetlands and Streams. Raised on a small beef cattle ranch in eastern Oklahoma, Matt graduated from Oklahoma State University with a bachelor’s in plant and soil science and a minor in range management. He received his master’s in wetland ecology, also at OSU. Matt and his partner live in Grand Island, Nebraska, with their new Pudelpointer puppy, Penny, and cat, Mia, where they enjoy entertaining friends, cooking, and fun in the outdoors.

Award for Program Development. Rebecca Swadek is the director of wetlands management at the New York City Department of Parks & Recreation. In this role, she provides strategic management and leadership for an interdisciplinary team focused on protecting and restoring over 60 miles of streams and 3,000 acres of tidal and freshwater wetlands on NYC’s parkland. She has taken a lead role in advising on the city’s first wetland mitigation bank—consulting on hundreds of projects impacting wetland resources, developing a public wetlands map for the city, and contributing to the restoration and protection of over 85 acres of wetlands.

Rebecca has co-authored eight agency reports related to wetland, watershed, and stream management and served as the lead author for the “Wetlands Management Framework for New York City," released in 2021 with the Natural Areas Conservancy. The framework serves as a 30-year roadmap for the protection, management, and restoration of New York City’s remaining wetlands.

Rebecca serves as a co-chair for the Ecology Team for the Bronx River Alliance and as a research associate for the Botanical Research Institute of Texas. Trained as a plant ecologist, Rebecca has over 15 years of experience in plant conservation, ecological restoration, and stormwater management in California, New York, and Texas.

Award for Local Stewardship. Scott Fisher serves as Director of ʻĀina (Land) Stewardship for the Hawaiʻi Land Trust (HILT), which encompasses 19,500 acres of protected land in Maui, Oʻahu, Kauaʻi and Hawaiʻi Island. He joined HILT in 2003 as project manager for the 277-acre Waihe’s Coastal Dunes and Wetlands Refuge. Since 2019, Scott has also worked as a consultant with the Mikajy (Restoration) project in Menabe Province, Madagascar.

Raised in Kula, Maui, Scott enlisted in the Marine Corps when he was 17 and served in the Gulf War. Scott’s first Ph.D. explored the dynamics of post-conflict recovery related to natural resource degradation among Pacific Island communities on the island of Bougainville in Papua New Guinea. From 2017-20 Scott was a visiting fellow at the University of Leicester, conducting research into the relationship between ecological restoration, ecosystem resilience, and paleoecology. Scott also holds graduate certificates in ecological restoration and sustainable agriculture.

Scott is currently enrolled in a Ph.D. program in earth and ocean science at the University of Southampton (UK), where he is studying how to optimize nature-based solutions to high-energy marine inundation events. On weekends, Scott enjoys working at his 4-acre ulu (breadfruit) farm on Maui.

Award for Scientific Research. Bingqing Liu is a research scientist and deputy director of the RESTORE Act Center of Excellence for Louisiana (LA-COE) at The Water Institute. Her cutting-edge and forward-thinking scientific research focuses on coastal wetland carbon modeling and remote sensing monitoring to examine the responses of coastal blue carbon habitats (e.g., black mangroves and marshes) to meteorological and climatic changes and restoration activities in Louisiana.

Over the past five years, she has worked tirelessly in the field of wetland habitat classification and wetland carbon capture from field research, remote sensing, and numerical modelling. As the deputy director of LA-COE, Bingqing administers a competitive grant process and provides the appropriate coordination and oversight to ensure the findings from funded projects can be implemented into Louisiana’s Coastal Master Plan, thereby allowing her to facilitate the translation of research findings into actionable measures and benefiting the broader public and communities that rely on healthy wetland ecosystems.

Award for Youth Leadership. Charlotte Michaluk, a high school student in Pennington, New Jersey, is passionate about protecting coastal wetlands from the spiraling effects of climate change through innovative cargo ship design.

Charlotte designed a ship hull coating inspired by shark skin that improves ship efficiency by reducing drag and biofouling, while simultaneously minimizing invasive species transport. She also developed a concept for a hybrid wind and fossil fuel powered cargo ship that cleans exhaust and improves seakeeping, while generating auxiliary propulsive power from wind energy. Her research has been presented at numerous conferences and recognized internationally. In addition, Charlotte has gathered and analyzed field data, worked with the New Jersey Department of Environmental Protection, and advocated at public hearings to preserve ecologically critical wetlands, habitats of exceptional significance, and wildlife corridors in Central New Jersey.

Charlotte has been recognized multiple times by the Environmental Protection Agency and was winner of the 2020 Department of Defense STEM Talent Award for her work on cargo ship design. Her sister, Sonja Michaluk, was an NWA recipient in 2021.

WOTUS v. SCOTUS

On May 25, the Supreme Court, ruling in Sackett v. EPA, sharply limited the scope of the federal Clean Water Act’s protection for the nation’s waters. The Court redefined the act’s coverage of “waters of the United States,” which has been hotly contested since the Court’s 2006 decision in Rapanos v. United States.

For nearly 50 years, the Environmental Law Institute has prepared authoritative research and analysis on federal, state, and tribal wetlands and water laws, and hosted workshops focused on legal and programmatic means for wetlands protection.

Visit this site, where we’ve compiled our observations of the Sackett decision and collected materials from ELI experts to help support states, tribes, and policymakers in this new legal context.

Six Conservationists Win National Wetlands Awards.

The High Court’s Environmental Docket Continues to Make Waves
Author
Bethany A. Davis Noll - NYU Law
NYU Law
Current Issue
July-August 2023
Issue
4
Bethany A. Davis Noll

The Supreme Court decided two cases in May that will have profound implications for environmental protection around the country, Sackett v. EPA and National Pork Producers Council v. Ross.

The first is about whether the Sacketts can build a house on wetlands under the Clean Water Act’s protections, and is a startling attack on congressional authority. The CWA gives the federal government jurisdiction over “navigable waters” and defines that term as “the waters of the United States.” In a provision which divvies up permitting authority between the federal government and the states, the statute makes clear that “adjacent wetlands” are included.

Justice Alito wrote the majority decision. It holds that waters of the United States are, first, “relatively permanent, standing, or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as streams, oceans, rivers, and lakes” and, second, that wetlands must have a “continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins.” The wetlands on the Sackett property do not satisfy this test.

In concurring opinions, authored by Justices Kavanaugh and Kagan (where they concurred in the judgment about the Sackett property only), the two accuse the majority of blatantly rewriting the CWA. As they both explain, the majority admits that some wetlands must qualify. But rather than stick to the word “adjacent,” which is in the act, the Court goes for something like “adjoining” instead. Those two concepts are different. An adjacent wetland might be nearby a river, but it may lack the required “continuous surface connection with that water” if it is separated from the navigable water by a natural or artificial barrier such as a dike.

This change poses a threat to water quality and flood prevention around the country, as Kavanaugh laments. For example, wetlands on the other side of a levee along the Mississippi River, but which are crucial to flood prevention, will be unprotected. He also explains that the new definition will not provide any additional clarity about which waters are regulated. Without a scientifically moored understanding of the connections between different waters, these questions will persist.

On that topic, the majority opinion rejects EPA’s “policy arguments about the ecological consequences” of its decision, explaining that the CWA “does not define the EPA’s jurisdiction based on ecological importance.” But that again ignores the text of the statute, where Congress explained that the act’s primary purpose is to “restore and maintain the chemical, physical, and biological integrity of the nation’s waters.” James McElfish wrote in the ELI blog that it will now be up to states to protect wetland, but there are difficult hurdles there.

In the other big case Pork Producers, hog raisers challenged California’s new program forbidding them from selling pork that was raised inhumanely, invoking the “dormant Commerce Clause.” That doctrine is a gloss on the Constitution’s Commerce Clause and holds (in simplified terms) that states cannot intrude on areas of interstate commerce or regulate outside of their borders. According to petitioners, California violated that doctrine because the program would affect how pork producers in states like Iowa and North Carolina raised their pigs, if they planned to sell in California.

The case presented a threat to many state laws and policies, including health and safety laws as well as programs that encourage renewable energy because all of them can have extraterritorial effects. The Court agreed and, in an opinion authored by Gorsuch, relied on that point to reject the challenge.

One section of Gorsuch’s opinion, joined by only Thomas and Barrett, did not have majority agreement, but it is interesting to read now in light of their later votes in Sackett. The section addresses a doctrine that has developed under Pike v. Bruce Church, Inc. That case instructs courts to balance the burden on interstate commerce with the “putative local benefits” before striking down the state law under the dormant Commerce Clause. The three justices (all of whom would later sign the majority decision in Sackett) explain that they will not strike down California’s program under that doctrine, because policy choices about moral or health issues “usually belong with the people and their elected representatives.” They point out that if Congress would like to regulate pork production and preempt California’s program, it can. And in their view, Congress is “better equipped” than the Court to “identify and assess all the pertinent economic and political interests at play across the country” for purposes of adopting a uniform nationwide rule. Now refer back to Sackett, where Kagan accuses the majority of adopting a “reflexive response to Congress’s enactment of an ambitious scheme of environmental regulation.” Given the later language in Pork Producers, she may be right.

The High Court’s Environmental Docket Continues to Make Waves.

No Bright Lines When Judging Diverse Waters of United States
Author
David P. Clarke - Writer & Editor
Writer & Editor
Current Issue
May-June 2023
Issue
3
David P. Clarke

For developers, farmers, and other interests, the Trump administration’s 2020 rule defining “waters of the United States” subject to federal permitting requirements was just fine. That’s understandable. Under that regulation, 75 percent of waterbodies were deemed outside the scope of the Clean Water Act. But in January, President Biden’s EPA and Army Corps of Engineers replaced the 2020 rule with a new one that has provoked concerted attack.

Numerous industry groups charge that the new regulation exemplifies “federal overreach” on public and private land, joining 26 states that filed a lawsuit in North Dakota, and supporting a Texas and Idaho lawsuit that successfully froze the rule’s March 20 effective date in those two states until after a decision on a pending Supreme Court WOTUS case. In March, the House voted 227-198—with five supporting Democrats—to approve a resolution overturning the new rule. The Senate followed by approving the resolution, but President Biden vetoed the measure.

But overturning the new rule would be problematic, according to Joan Drake, a partner with Modrall Sperling, who before becoming a lawyer spent 14 years as a Corps staffer in both California and New England conducting “jurisdictional determinations” delimiting where WOTUS bodies “were and were not.” Corps staff who review applications for a permit to discharge dredged or fill materials into wetlands or other aquatic sites require regulations clear enough to be meaningfully applied nationwide, she says.

Responding to that need, both the Trump and Obama administrations promulgated “bright line” rules, albeit with widely divergent results, that theoretically would enable faster and easier WOTUS determinations. But U.S. geography and hydrology are too diverse, encompassing the arid West, humid East, and “all ranges in-between,” and in this context one-size-fits-all bright lines “just don’t work,” Drake says.

The new regulation is laudable for eschewing any such “magic-bullet” aimed at simplifying inherently complex field assessments, Drake insists. Instead, the rule adopts two concepts from the pivotal Rapanos v. United States lawsuit challenging federal jurisdiction to regulate isolated wetlands. Justice Antonin Scalia, writing for a plurality, interpreted WOTUS to mean “relatively permanent” waterbodies and wetlands with a continuous surface connection to navigable waters. Justice Anthony Kennedy, in his concurring opinion, interpreted WOTUS to include wetlands with a “significant nexus” to navigable waters.

The 2023 rule “embraces” both interpretations and gives staff various criteria to consider in making the most difficult determinations. Drake gives as a for instance whether an upstream tributary could have a significant nexus creating “material” impacts on the “chemical, physical, or biological integrity” of downstream navigable waters, a CWA touchstone. Criteria include the tributary’s “distance” upstream, a site’s “hydrologic factors,” and other conditions, not all quantifiable.

In fact, as Drake notes, the information agency staff collect must be weighed and balanced to make an informed decision, especially in the arid Southwest. Although no bright lines exist to simplify those decisions, the judgment calls, obviously, cannot be “arbitrary and capricious.” Rather, staff must support their decisions using extensive case-by-case data collected using the rule’s criteria.

Commendably, says Drake, the new rule returns to and improves upon the 1986 rule that Corps staff had been using for decades, employing science and policy to “fill the gap” created when Congress chose to leave WOTUS undefined in the CWA and instead authorized the Corps and EPA to do so. While no regulation is perfect, the 1986 rule promoted development under certain circumstances while also advancing the CWA’s goal of protecting WOTUS.

But critics have strongly voiced their concerns about the new rule. During a February House subcommittee hearing, speaking for the 140,000-member National Association of Homebuilders, developer Alicia Huey argued that the rule will increase permit requirements and delays and spur more litigation without improving water quality. Much of the rule covers “water features” that states already regulate, she said.

By embracing both the “relatively permanent” and “significant nexus” approaches, the rule gives agencies “two bites at the apple,” and it leaves key terms undefined, such as “significantly affect” and “tributary,” giving agencies “unfettered discretion” to interpret the terms, Huey said. In contrast, the Trump WOTUS rule clearly defined “adjacent wetlands,” making the significant nexus test “irrelevant,” among other provisions that gave homebuilders the “clarity and certainty” they want.

No Bright Lines When Judging Diverse Waters of United States.

It's Deja Vu All Over Again With Storm Over Waters of U.S. Rule
Author
Ethan Shenkman - Arnold & Porter
Arnold & Porter
Current Issue
November-December 2021
Issue
6
Ethan Shenkman

Next year will mark the 50th anniversary of the Clean Water Act, one of the nation’s bedrock environmental laws. Chances are we will be no closer to resolving its jurisdictional scope. Practitioners involved in the use and management of natural resources and the compliance issues they raise will want to pay close attention, as the situation is turbulent at best.

In the early 1980s, EPA and the Army Corps adopted a definition of “waters of the United States” — found in the text of the statute but not defined further — that included a broad swath of non-navigable tributaries, adjacent wetlands, and other waters. That definition lasted nearly four decades, although it experienced rough waters in the Supreme Court. The government’s approach to CWA jurisdiction was upheld in Riverside Bayview (1985), trimmed back in Solid Waste Agency of Northern Cook County (2001), and thanks to a splintered 4-1-4
decision rendered topsy-turvy in Rapanos (2006).

In the aftermath of Rapanos, stakeholders debated which view should prevail: Justice Scalia’s plurality opinion limiting jurisdiction over wetlands to those with a continuous surface connection to other waters of the United States (supported by four justices); or Justice Kennedy’s concurring opinion covering all wetlands with a “significant nexus” to navigable-in-fact waters. For the most part, agencies and courts would apply the significant-nexus test, but its precise meaning proved murky.

The Supreme Court expressed frustration with this state of affairs — albeit arguably of their own making. Justice Alito lamented in Sackett (2012) that “for 40 years, Congress has done nothing to resolve this critical ambiguity” and “EPA has not seen fit to promulgate a rule providing a clear and sufficiently limited definition of the phrase.” He proclaimed, “The reach of the Clean Water Act is notoriously unclear.”

The Obama administration finally decided to take the plunge in 2015, issuing a major WOTUS rulemaking based on a voluminous scientific record. Scores of plaintiffs challenged the Obama rule; scores of intervenors sought to defend it. There was a small detour back to the Supreme Court to decide whether the proliferating legal challenges should be heard in the appeals courts or the trial courts in the first instance (answer: the latter). And then, an election happened. The Trump administration, fulfilling a campaign promise, issued an executive order directing the agencies to hew more closely to Scalia. The agencies repealed the 2015 regulation and replaced it with the Navigable Waters Protection Rule, scaling back CWA jurisdiction.

Scores of plaintiffs challenged the Trump rule; scores of intervenors sought to defend it. And then, once again, an election happened. This time it was the Biden administration fulfilling a campaign promise and issuing an executive order. EPA and the Corps announced an intent to proceed with new rulemakings in two stages: first to repeal, then to replace. (Sound familiar?)

Meanwhile, challenges to the Trump rule are still pending in over a dozen courts around the country. Justice Department attorneys had no interest defending the Trump rule while the Biden administration charted a new course. So the government filed a series of motions for voluntary remand, asking the courts to send the matters back to EPA for further proceedings. And, in DOJ’s view, the Trump rule could stay in place in the meantime.

Safe harbor? Not so fast. In late August, Judge Rosemary Márquez of the District Court of Arizona granted DOJ’s remand request, but in an unexpected twist vacated the Trump rule. The judge’s order resurrected the 1980s-era definition, returning full circle to where the WOTUS journey began. Judges in other cases expressed disagreement with Marquez’s remedy, since the courts had not decided the merits of the pending legal challenges.

A debate ensued as to whether Márquez’s order had nationwide effect. The agencies cut it short, however, by posting a notice on their websites in September indicating that the Trump rules would no longer be enforced. EPA and the Corps announced that they, too, would return full circle to the definition of “waters of the United States” first promulgated in the early 1980s — at least for now.

Channeling Bill Murray in Groundhog Day, environmental practitioners find themselves back in the situation they were in for decades before 2015: a broad and open-ended WOTUS definition, subject to numerous administrative and judicial interpretations, exacerbated by a splintered Supreme Court opinion.

Peering down river, what will happen next? Will Márquez’s order be appealed? Will the agencies propose new rules any time soon? Will they scale back their ambition and make minimal changes to the WOTUS definition this time around? Or will they launch into new and unchartered waters? Time to batten down the hatches once again.

It's Deja Vu All Over Again With Storm Waters of U.S. Rule

New wetlands rule imperils Bay cleanup, groups say
Bay Journal (by Jeremy Cox & Timothy B. Wheeler)
March 3, 2020
https://www.bayjournal.com/article/new_wetlands_rule_imperils_bay_cleanup_group…

The Trump administration’s plans to remove federal oversight from some streams and wetlands will leave those waterways without protection in some of the Bay watershed states, while increasing the regulatory burden on others, officials and conservationists say . . . .

Justice Gorsuch Faces Case Where Neither Choice Entirely Satisfactory
Author
Richard Lazarus - Harvard University
Harvard University
Current Issue
January-February 2018
Issue
1
Richard Lazarus

Before joining the Supreme Court, Neil Gorsuch made clear that he, like the justice he replaced, Antonin Scalia, believes in strict adherence to statutory text. According to Gorsuch, a judge’s personal policy preferences should play no role in statutory interpretation. And, going even further than Scalia, nominee Gorsuch admonished that judicial deference to agency construction of ambiguous statutory language under Chevron v. Natural Resources Defense Council amounts to an unconstitutional violation of separation of powers. An environmental case now pending before the Court on petition for a writ of certiorari, however, may well put Justice Gorsuch’s stated commitment to statutory text to the test.

At issue in the petition pending before the Court in New York vs. EPA is the validity of the agency’s so-called Water Transfer Rule, which provides that a movement from one navigable waterbody to an entirely distinct waterbody does not amount to an “addition of any pollutant to navigable waters” requiring a Clean Water Act Section 402 permit. Under this reading, EPA readily acknowledges, a person can discharge highly polluted water from one water body into a highly pristine separate water body without the need for a Section 402 permit.

EPA statutory grounding for the validity of the WTR is the Clean Water Act’s phrasing of the definition of “discharge of a pollutant” to mean “any addition of any pollutant to navigable waters.” EPA contends that the term “navigable waters” in this context treats all navigable waters in the nation as a “unitary” concept such that conveyances of pollutants from one navigable waterbody to another do not “add” pollutants to navigable waters overall. The pollutants are merely redistributed within the nation’s navigable waters.

The origins of EPA’s unitary waters theory can be found in an amicus brief filed by the solicitor general in the Supreme Court’s South Florida Water Management District vs. Miccosukee Tribe of Indians, decided in 2004. Relying on the notion that the Clean Water Act treated navigable waters as a unitary concept, the amicus brief argued for the first time that point sources that transfer water from one navigable waterbody to another distinct navigable waterbody do not require Section 402 permits even though the “point source . . . might be described as the ‘cause-in-fact’ of the release of pollutants into navigable waters.”

The reason for the solicitor general’s surprising filing at the time was clear. The federal government was concerned that a different rule might subject to Clean Water Act permitting requirements the routine transfers of water by federal agencies such as the Bureau of Reclamation or the U.S. Army Corps of Engineers between distinct bodies of navigable water. In this respect, the primary institutional motivation behind the interpretation appeared to derive from the concerns of those agencies rather than from EPA.

Both during the Miccosukee oral argument and in the opinion she wrote for the Court in the case, Justice Sandra Day O’Connor left little doubt of her skepticism of the validity of the solicitor general’s view. At oral argument, she described it as “an extreme position” that needed “a fall-back position,” generating courtroom laughter.

And in the opinion she went to great lengths to explain the many ways that such an interpretation could not be squared with the structure and operation of the Clean Water Act. The opinion emphasized in particular how the unitary waters theory conflicted with those parts of the statute that seek to protect “individual waterbodies as well as ‘waters of the United States’ as a whole.” The Court, however, declined ultimately to decide the issue because it had not been raised in or decided by the lower courts.

Notwithstanding the Miccosukee Court’s clear skepticism, EPA subsequently embraced the solicitor general’s unitary waters theory in a rulemaking that established the WTR, which exempts from Clean Water Act Section 402 permit requirements transfers of water (even if polluted) between distinct waterbodies. And, relying very heavily on Chevron deference, two federal courts of appeals have rejected challenges to EPA’s rule that argued that the rule cannot be squared with the act’s plain meaning and clear focus on individual waterbodies.

The state of New York’s pending petition in New York v. EPA asks the Supreme Court to review the issue. Should Gorsuch adhere to his view of both the conclusive role of statutory text and the impropriety of Chevron deference in judicial review of agency interpretation, there is good reason to expect he would support the WTR’s challengers on the merits. Yet, hailing from Colorado, where such water transfers are routine, the justice’s personal policy preferences are likely sympathetic to EPA’s contrary position.

How Justice Gorsuch votes on New York’s petition may well provide an early test of the strength of the justice’s stated convictions.

Justice Gorsuch faces a case where neither choice is entirely satisfactory.

A Long and Bumpy Road
Author
Jeremy Bernstein - Inside EPA
Inside EPA
Current Issue
January-February 2017
Issue
1
by Henry Payne

COVER STORY ❧ Trump and Congress plan to trim back the Democrats’ environmental achievements, decrying the cost to business and consumers and substituting what GOP leaders argue is more savvy regulation. They may succeed, but there are numerous obstacles in their path.

Subscribe to WOTUS