Comment on Docket EPA-HQ-OW-2017-0203: Definition of ‘‘Waters of the United States’’—Recodification of Preexisting Rule, Supplemental Notice of Proposed Rulemaking, 83 Fed. Reg. 32,227 (July 12, 2018).
The Natural Resources Defense Council files the following comments on behalf of our more than three million members and online activists. The Environmental Protection Agency and Army Corps of Engineers’ latest attempt to repeal the agencies’ 2015 Clean Water Rule is as unwise, unlawful, and unmoored from the relevant facts and scientific evidence as their first attempt. Whereas the 2017 proposed repeal was an outcome in search of a rationale, the current proposal is a rationale in search of evidence to support its assumptions. The agencies’ proposal violates the Administrative Procedure Act because it is arbitrary and capricious in several respects and because the proposal does not follow basic procedural requirements. It must be withdrawn.
The agencies principally base their proposed repeal on two claims, neither of which withstands even modest scrutiny. First, they attempt to argue that the Clean Water Rule is less predictable and consistent than the pre-Rule regime, yet they offer no substantive analysis to support this claim, and the available evidence contradicts it strongly. Second, the agencies suggest that the pre-Rule regime might align better with the Clean Water Act than the Clean Water Rule, if one reads the Act in a completely new way that simultaneously distorts Justice Kennedy’s opinion in Rapanos v. United States1 and puts undue weight on irrelevant provisions of the law. But the agencies utterly fail to substantiate their speculation that the Clean Water Rule might protect too many aquatic resources from pollution.
Critically, the proposal repeats a fatal flaw from the 2017 repeal proposal – it fails to compare the relative merits of the Clean Water Rule and the hodgepodge of regulatory text, guidance documents, shifting interpretations of Supreme Court precedent, and agency practice that constitute the pre-Rule regime. The agencies discuss at length the supposed shortcomings of the Clean Water Rule, none of which withstand scrutiny, but say nothing—certainly nothing substantive—in defense of the regulatory regime that will now replace the Rule. The proposal also lacks any analysis of how the agencies’ retreat from the Clean Water Rule will impact water bodies across the country, much less the recreational economy that relies on clean water, the property values protected by flood-reducing wetlands, or the drinking water supplies that are fed by water bodies that the proposal would put at greater risk. Likewise, the proposal remarkably declares that the agencies now think the Clean Water Rule previously relied too much on the scientific record, but do not explain how their alternative approach better serves the objectives of the Clean Water Act.
Once again, the proposal ignores fundamental administrative procedures. The agencies failed to provide a meaningful opportunity for public comment by limiting stakeholder input to a 30-day window. Such a short period is manifestly too brief for an action like this – which will permanently repeal one set of regulations that establish the scope of numerous nationally applicable pollution control programs and replace those regulations with an entirely different policy framework. The agencies also deprived the public of its ability to provide meaningful comment on the basis for the agencies’ action by failing to provide factual support for their legal conclusions and asking opponents of the Clean Water Rule to provide it to the agencies. And this proposal, signed by former Administrator Pruitt, reflects his unalterably closed mind about repealing the Clean Water Rule, a deprivation of due process that cannot be cured if acting Administrator Wheeler signs the final rule after such an abbreviated comment period.
Additionally, the agencies have not corrected the initial proposed repeal’s error in codifying regulations they do not intend to follow while failing to codify the policies and practices they claim they plan to follow. As NRDC explained in its comments on the prior repeal proposal, it is substantively arbitrary and procedurally illegal to propose regulatory text for adoption into the Code of Federal Regulations while explicitly proposing not to enforce that text as written, and while giving the public no firm sense of what regulatory regime will be enforced. The public will apparently need to cobble together the agencies’ present understanding of the scope of the Clean Water Act from various Supreme Court opinions, outdated and discretionary “guidance documents,” and now, even more confusingly, a brand-new gloss on those materials that the agencies are advancing in this proposal for the very first time, that potentially narrows the preRule regime even further. The agencies are refusing to commit to writing the actual rules they intend to enforce, apparently preferring not to be pinned down or held to account. That is utterly illegal under basic Administrative Procedure Act principles of public notice, transparent laws, and reasoned decision-making.
I. THE PROPOSAL IS ARBITRARY AND CAPRICIOUS.
An agency rule is arbitrary and capricious if, among other things, “the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”
- The agencies offer explanations that run counter to the evidence.
Much of the supplemental proposal turns on a conceit – the agencies’ argument that the pre-Clean Water Rule regime is better understood and more predictable than the Rule. This contention is false, both because the assortment of regulations, guidance, and unwritten policies that the agencies implemented before the Clean Water Rule lacked clarity and consistency, and because the Rule provides significantly more clarity and consistency, notwithstanding the makeweight arguments the agencies now propose to accept. In fact, as discussed further below, this proposal injects additional uncertainty into the pre-Rule regime by suggesting that the agencies will shrink the Act’s scope even further than the (unwritten) regime they will ostensibly enforce.
- The pre-Clean Water Rule regime was characterized by uncertainty and unpredictability.
The agencies lack any factual basis to conclude that the pre-Clean Water Rule regime was clearer or more predictable than the Clean Water Rule. The proposal creates a false impression that the agencies have been implementing the same set of policies for many decades, and that it is well understood, but neither is true. Specifically, the agencies claim:
Given the longstanding nature and history of the 1986 regulations, this regulatory regime is more familiar to the agencies, co-regulators, and regulated entities. For this reason, as between the 2015 Rule and the 1986 regulations, the 1986 regulations (as informed by applicable Supreme Court precedent and the agencies’ guidance) would appear to provide for greater regulatory predictability, consistency, and certainty, and the agencies seek public comment on this issue. Though the agencies acknowledge that the 1986 regulations have posed certain implementation difficulties and were the subject of court decisions that had the effect of narrowing their scope, the longstanding nature of the regulatory regime—coupled with the agencies’ and others’ extensive experience with the regulatory scheme—make it preferable to the regulatory uncertainty posed by the 2015 Rule.
This statement is nothing more than a bald conclusion without evidentiary support, and it is misleading to boot.
First, the agencies’ repeated reference to the “1986 regulations” falsely implies that the jurisdictional policies that immediately predated the Clean Water Rule were in place for more than 30 years, and implies that the agencies’ experience implementing those rules renders them more certain and predictable. The agencies further reinforce that impression by stating: “Through over 30 years of experience, the agencies have developed significant technical expertise with the 1986 regulations and have had the opportunity to refine the application of the rules through guidance and the agencies’ experience and federal court decisions.” The truth is that the policies that were being implemented before the Rule are of recent vintage; the pre-Clean Water Rule regime is largely reflected in a 2008 guidance document that followed Rapanos, but that document represented a new gloss on what could be covered compared to a 2003 guidance document that followed SWANCC. Neither of these guidance documents is codified and neither tracks the specific language of the 1986 regulations.
Second, even the recent guidance documents do not accurately reflect the agencies’ actual practice. For example, as NRDC’s earlier comments on this repeal proposal showed, the stated policy of the United States is that “isolated” waters are legally eligible for protection,5 but the actual practice of the United States is to treat such waters as unprotected.
Third, the guidance document at the center of the pre-Rule regime expressly disclaims that it delivers certainty and consistency to stakeholders, as it says field staff may not follow it “depending on the circumstances,” and others could challenge its “appropriateness” in a given situation, without saying how either determination should be made:
The CWA provisions and regulations described in this document contain legally binding requirements. This guidance does not substitute for those provisions or regulations, nor is it a regulation itself. It does not impose legally binding requirements on EPA, the Corps, or the regulated community, and may not apply to a particular situation depending on the circumstances. Any decisions regarding a particular water will be based on the applicable statutes, regulations, and case law. Therefore, interested persons are free to raise questions about the appropriateness of the application of this guidance to a particular situation, and EPA and/or the Corps will consider whether or not the recommendations or interpretations of this guidance are appropriate in that situation based on the statutes, regulations, and case law.
Fourth, agency professionals implementing the pre-Rule regime confirm that the pre-Rule regime lacked certainty and predictability. When the EPA Inspector General interviewed the Director of EPA’s Office of Enforcement and Compliance Assurance, Wetlands Enforcement Division, and his staff, they openly acknowledged the lack of regulatory clarity and its impact on efficient administration of the Clean Water Act, saying:
- Rapanos has created a lot of uncertainty with regards to EPA’s compliance and enforcement activities. Processing enforcement cases where there is a jurisdictional issue has become very difficult. ***
- Overall, CWA enforcement activities (for Sections 311 (oil spills), 402 (National Pollutant Discharge Elimination System), and 404) have decreased since the Rapanos ruling. An estimated total of 489 enforcement cases (Sections 311, 402, and 404 combined) have been affected such that formal enforcement was not pursued as a result of jurisdictional uncertainty, case priority was lowered as a result of jurisdictional uncertainty, or lack of jurisdiction was asserted as an affirmative defense to an enforcement action.
- In the wake of Rapanos, however, it has become “almost impossible” for EPA to refer a case to the Department of Justice on “significant nexus” grounds. Lingering uncertainty over the limits of Federal jurisdiction has made the Department of Justice reticent to accept referrals wholly on these grounds.
- Staff also stated that the Department of Justice is “willing” to take CWA Section 404 cases, in principle, but they are often loathe [sic] to right now because of the lingering jurisdictional uncertainties associated with Rapanos. ***
Fifth, the pre-Clean Water Rule regime was not consistent from state to state, because some federal circuit courts did not reach the same conclusion as the post-Rapanos guidance on a key question: whether jurisdiction could be established using either Justice Kennedy’s approach or the plurality’s approach, or only Justice Kennedy’s framework. As the agencies explained to the Sixth Circuit:
Three courts of appeals have given effect to the common denominator between Justice Kennedy’s concurrence and the four-Justice dissenting opinion in holding, consistent with the Agencies’ position, that CWA jurisdiction is established if Justice Kennedy’s significant nexus standard is met. See Donovan, 661 F.3d at 180-84; United States v. Bailey, 571 F.3d 791, 797-99 (8th Cir. 2009); Johnson, 467 F.3d at 62-66. These decisions also allow the Agencies to assert jurisdiction under the Rapanos plurality standard. *** [Other] decisions hold that Justice Kennedy’s significant nexus standard is either sufficient or exclusive. See United States v. Robison, 505 F.3d 1208, 1219-22 (11th Cir. 2007); N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993, 999-1000 (9th Cir. 2007); United States v. Gerke Excavating, Inc., 464 F.3d 723, 724 (7th Cir. 2006).
- This lack of national consistency will return if the agencies implement this rule as they claim they will, such that the location of where a particular pollution discharge occurs will determine the standard (or standards) for assessing whether an area contains a “water of the United States.”
Based on this information and the agencies’ experience leading up to the Clean Water Rule, they found that “this time and resource intensive process can result in inconsistent interpretation of [Clean Water Act] jurisdiction and perpetuate ambiguity over where the [Act] applies.” The Agencies identified a “compelling need for clearer, more consistent, and easily implementable standards to govern administration of the Act, including brighter line boundaries where feasible and appropriate.”
Accordingly, the factual record available to the agencies reveals that the assorted policy materials and unstated practices that made up the pre-Rule regime did not provide predictability, consistency, and certainty. Such an arrangement undermines effective and fair implementation of the Act; for example, industrial dischargers represented by Clean Water Act specialist attorneys will know that they can disregard the stated policy or certain provisions of the regulations because of a de facto ban on enforcement, whereas ordinary stakeholders unaware of these intricacies will not.The proposal fails to show that the Clean Water Rule undermines certainty and predictability.
In contrast to the wealth of evidence that the pre-Clean Water Rule regime was uncertain and unpredictable, the agencies’ argument that “[the Rule] does not appear to achieve one of its primary goals of providing regulatory certainty and consistency,” lacks any factual support. The proposal offers two arguments in support of this contention, namely that litigation about the Rule somehow renders it less certain and that some opponents of the Rule have labeled it confusing. Each of these arguments fails, especially because the agencies possess, but have ignored, a substantial factual record they could use to assess the accuracy of these claims.
Litigation over the Clean Water Rule does not undermine the Rule’s certainty and predictability. The agencies speculate that such court challenges “could result in a court order vacating the rule in all or part, in all or part of the country, and potentially resulting in different regulatory regimes being in effect in different parts of the country, which would likely lead to substantial regulatory confusion, uncertainty, and inconsistency.” These claims fail for several reasons. First, although litigation over the Rule has created a question about whether or not the Rule will ever come back into effect, it does not logically follow that the litigation makes the rule’s provisions any less certain or their implementation less predictable; indeed, the agencies’ discussion of litigation fails entirely to explain how litigation could impact the rule text. Second, the agencies offer no reason to think that, once courts resolve the litigation on the merits, different regulatory regimes will be in place in different parts of the country; in the ordinary course, a court reviewing a nationwide rule like the Clean Water Rule will decide whether it is valid and either uphold it or vacate it, a remedy that, either way, would not vary by location. Third, if the mere possibility of a rule being invalidated due to litigation could serve as a reason to repeal that rule, the Administrative Procedure Act would be substantially undermined, as federal agencies would not have to provide rational reasons to entirely reverse regulations just adopted, so long as litigation was underway (a very common occurrence with EPA rules).
Self-serving statements by opponents of the Clean Water Rule calling it too broad or confusing are not evidence that those statements are true, so such statements do not justify a conclusion that the Rule lacked clarity and predictability. The agencies contend that some stakeholders experienced “confusion” about the Rule and some states likewise “expressed confusion” about the Rule’s impact on their programs, quoting a number of states and industry parties that do not want the Rule to be implemented. These entities have said that the Rule is uncertain in some respect or another, leading the agencies now to declare, “[w]hether such comments are accurate or not, they indicate continued widespread disagreement and confusion over the meaning of the 2015 Rule and the extent of jurisdiction it entails.” That is a dumbfounding claim, and falls well short of reasoned decision-making — litigating positions are not facts. Because the agencies do not even identify specific elements of the Clean Water Rule and how they allegedly give rise to this claimed confusion, and because they do not show that the “confusion” is anything other than posturing (for instance, by identifying particular water bodies for which industry or states reasonably believed the Rule mandated one result, and the agencies concluded otherwise), the agencies lack any evidence to substantiate their assertion that the Rule is confusing.
While failing to provide evidence to support a conclusion that the Clean Water Rule lacks clarity and predictability, the agencies also refuse to examine the highly relevant evidence they have. The proposal acknowledges that 540 approved jurisdictional determinations were made pursuant to the Clean Water Rule in 2015, yet the agencies make no attempt whatsoever to analyze those determinations to assess whether the Clean Water Rule gave rise to “confusion” as alleged, or actually increased clarity. These water body-specific applications of the Rule are the best evidence of whether it achieved the goal of improving the regularity of agency decisions, and the agencies’ abject failure to examine that evidence speaks volumes.
At the same time, the agencies have utterly failed to analyze whether the pre-Rule regime is more unpredictable and uncertain, despite possessing a decade’s worth of evidence that it is and despite the agencies’ own prior factual conclusion to this effect.
- The proposal creates new uncertainty and unpredictability about the scope of Clean Water Act coverage.
As further evidence that the agencies’ “clarity” and “predictability” rationales are a sham, the proposal contains new legal interpretations that could further undermine implementation of the already-confusing pre-Clean Water Rule regime they claim to be enforcing. In their zeal to deride the Clean Water Rule as overreaching, the agencies read new concepts and limitations into the Clean Water Act that the law does not actually contain, and that the agencies did not claim, even prior to the Rule. In many instances, these new interpretations arise because the agencies attempt to suggest that the plurality and concurring opinions in Rapanos had important commonalities, but that is blatantly wrong.
The agencies’ revisionist history introduces new ambiguity into the already muddled regulatory and policy landscape to which the agencies wish to return. This further illustrates the agencies’ failure to meaningfully compare the Clean Water Rule to their preferred alternative. It also further reveals the proposal as arbitrary and procedurally improper, because again, the agencies are not outlining what rules they intend to enforce. They do not intend to enforce the rules proposed for the CFR, and they apparently do not even intend to enforce the so-called “familiar” pre-Rule regime—rather, they seem to be advocating some narrower version of that pre-Rule regime that is at present unwritten, unclarified, and uncodified. The public will be left to guess at its contours.
First, the agencies concoct a novel limitation on the linchpin term “waters of the United States,” which they say arises because the Act separately contains programs that promote pollution reductions throughout broad watersheds. The agencies point to these other programs in concluding that the “waters of the United States” consist of a “narrower set of the nation’s waters” than those targeted by these watershed programs. They point to nothing in the enactment of the law that suggests Congress intended the Act’s most important tools for restoring and protecting the nation’s waters to apply less comprehensively than some of the law’s watershed restoration programs. Nevertheless, agency staff and stakeholders will be left to wonder, if the agencies finalize this proposal, whether this new pronouncement means that water bodies that are at the top of major watersheds must be excluded from Clean Water Act coverage, even if they are properly considered “waters of the United States” under the pre-Clean Water Rule guidance. And, because the guidance empowers agency field staff not to follow it “depending on the circumstances,” and it says that others could challenge its “appropriateness” to a given situation, the agencies’ newfound “narrower” interpretation of the law could easily influence how particular decisions are made in practice.
Second, the agencies indicate that they can opt not to protect most of the nation’s waters. They say they “can choose to regulate beyond waters more traditionally understood as navigable, given the broad purposes of the CWA….” This suggests that the agencies may regulate beyond “traditionally” navigable waters, but need not do so—an interpretation that grossly misunderstands the agencies’ obligations under the Act. While the Agencies can adopt rules to provide details about how to determine which waters qualify as waters of the United States, they lack authority to exclude waters that the Act clearly encompasses. The Clean Water Act is a “tough law,” and the agencies charged with implementing it must do so — they are not free to ignore Congress’ intent to broadly protect the nation’s waters beyond those traditionally considered navigable by creating exemptions from the Act’s requirements. However, now that the agencies have proclaimed their freedom to disregard the law, one wonders how this will play out in individual jurisdictional determinations if this proposal is adopted.
Third, the agencies’ new gloss on what the Clean Water Act protects could undermine their implementation of the pre-Rule regime with respect to adjacent wetlands. The agencies now claim that adjacent wetlands can only be covered “if the wetlands are in close proximity to the tributaries, such as in the transitional zone between open waters and dry land.” However, the 2008 guidance – which the agencies claim will continue to be used – does not require close proximity in all cases for an adjacent wetland to be protected; it states:
Under this definition, the agencies consider wetlands adjacent if one of following three criteria is satisfied. First, there is an unbroken surface or shallow sub-surface connection to jurisdictional waters. This hydrologic connection maybe intermittent. Second, they are physically separated from jurisdictional waters by man-made dikes or barriers, natural river berms, beach dunes, and the like. Or third, their proximity to a jurisdictional water is reasonably close, supporting the science-based inference that such wetlands have an ecological interconnection with jurisdictional waters.
Accordingly, if the agencies finalize this proposal, both the public and even field staff presented with a wetland that is not very close to a tributary stream, but which is connected to it by shallow subsurface water, will likely be confused as to whether the wetland can be protected.
Fourth, the agencies also undermine the pre-Rule approach for wetlands by saying “it would not be consistent with Justice Kennedy’s Rapanos opinion or the Rapanos plurality opinion to regulate wetlands adjacent to all tributaries, no matter how small or remote from navigable water.” If this proposal is finalized, this interpretation could lead staff to question whether numerous wetlands near tributary streams that would otherwise likely be found jurisdictional under the pre-Rule approach can be covered. For instance, how is a Corps district engineer to evaluate a wetland abutting a first-order, perennial stream, many miles from the nearest navigable water, even if s/he has strong evidence of that feature’s significant downstream water quality effects? Such significant downstream effects would suggest coverage under the pre-Rule Rapanos guidance, but now the agencies’ statement in this proposal, cited above, casts doubt on that conclusion.
The agencies exacerbate the problems described above by appearing to question the validity of jurisdictional determinations for certain streams made using the pre-Rule regime. The proposal says, “[w]hile some ephemeral streams may have been jurisdictional after a case-specific analysis pursuant to the Rapanos Guidance, and while challenges to some of those determinations have been rejected by courts, the agencies are requesting public comment on whether these prior conclusions and assertions were correct. Throwing this question open to comment suggests the agencies are re-evaluating, and perhaps even proposing to change, how they made decisions about ephemeral streams in the past. The agencies very recently confirmed that historically, they “considered intermittent and ephemeral streams to be jurisdictional.” And under the pre-Rule Rapanos guidance, ephemeral streams were jurisdictional if they were found, on a case-by-case basis, to have significant water quality impacts downstream. But the agencies are apparently now questioning even that pre-Rule position, directly contradicting their stated plan to return to the pre-Rule regime. In other words, once again, the agencies are (1) proposing regulatory text that will cover “tributaries,” (2) saying they will not enforce the Act as covering all tributaries, (3) saying they will instead interpret that provision in line with the Rapanos guidance, and now (4) suggesting that they will not even do that, but will narrow their interpretation even further. How on Earth is anyone supposed to know what the agencies are planning to do?
- The agencies entirely fail to consider important aspects of the problem.
The agencies fail to substantively analyze the environmental and economic consequences of the proposal, or to compare the relative impacts of the proposal versus that of the Clean Water Rule.
- The agencies do not analyze the effects of the new proposal.
When the agencies first proposed to repeal the Clean Water Rule last year, they published a document purporting to analyze the economic impacts of the proposed repeal. As our prior comments on the repeal discussed, a straightforward analysis of repealing the Rule should have found that the costs of repeal outweigh the benefits, in light of the agencies’ prior finding that the Rule’s benefits exceed its costs, and the fact that the repeal is a complete reversal of the Rule.However, the agencies did not reach that conclusion, claiming that the value of wetlands’ ecosystem services, which made up the largest component of the benefits from the Clean Water Rule, could not be quantified, leading them to effectively discount those benefits entirely. This conclusion is fundamentally flawed for the reasons we and many other commenters on the proposed repeal previously articulated. Accordingly, the best estimate of the effects and net benefits of the Clean Water Rule (and, therefore, the net costs of this repeal proposal) remains the 2015 analysis.
Perhaps realizing how irrational the agencies were to effectively zero out the value of wetland services, it appears that they may now be abandoning any reliance on the prior economic analysis. The proposal says: “While economic analyses are informative in the rulemaking context, the agencies are not relying on the economic analysis performed pursuant to Executive Orders 12866 and 13563 and related procedural requirements as a basis for this proposed action. See, e.g., NAHB, 682 F.3d at 1039–40 (noting that the quality of an agency’s economic analysis can be tested under the APA if the ‘agency decides to rely on a cost-benefit analysis as part of its rulemaking’).” However, if the agencies intend to disregard their proposed reanalysis and the 2015 analysis, then the record of this rulemaking is completely devoid of a substantive analysis of the effect of the agencies’ rulemaking, rendering it arbitrary and capricious.
- The agencies fail to analyze relative merits of the proposed repeal and the Clean Water Rule.
The agencies obviously concluded that they prefer the pre-Clean Water Rule approach – or some narrower, unarticulated version of it — to the Rule, as evidenced by the extent to which they disparage the Rule. But the proposal still fails to examine the relative merits of the Rule and the agencies’ preferred alternative. Indeed, the agencies say nothing affirmative about why the pre-Rule regulatory regime represents good agency policy, even though that is what they intend to implement in the Rule’s place, and even though the pre-Rule approach could well become the permanent regime. And they do have a choice: they could do the work to come up with a rule they consider substantively better than the Clean Water Rule—they just have not bothered yet. They suggest repeatedly that the pre-Rule regulations are better simply because they are “longstanding” and “familiar,” but that says nothing of substance.
For example, the agencies could have – and should have — evaluated the relative merits of protecting certain non-adjacent waters under the Rule versus the present proposal. The agencies recognize that the pre-Clean Water Rule practice was to deny Clean Water Act protection to socalled “isolated” intrastate, non-navigable waters. They also understand that the Clean Water Rule recognized certain non-adjacent waters as “waters of the United States” upon a casespecific showing of significant nexus. And the agencies have a significant factual record to consider in order to understand the relative impact of either approach, because numerous states provided such information in the wake of SWANCC, when the agencies considered (but rightfully abandoned) changing their regulations to exclude “isolated” waters. These state submissions are included in the record of this rulemaking, as NRDC submitted them in response to the initial proposed rule.
- The agencies fail to consider how the Clean Water Rule better implements Justice Kennedy’s Rapanos analysis.
Although the proposal in several instances attempts to suggest that Justice Kennedy’s Rapanos opinion reflected a constrained view of what the Clean Water Act covers, that opinion instead is far more in keeping with the Clean Water Rule’s provisions. Unfortunately, the proposal fails to honestly assess whether the Clean Water Rule or the pre-Rule approach better implements Justice Kennedy’s opinion. Any fair assessment of the record of the Clean Water Rule and this proposed repeal reveals that the agencies properly understood Justice Kennedy’s test in developing the Clean Water Rule.
In suggesting that Justice Kennedy may have had a limited view of what tributaries and adjacent waters the law can protect, the agencies rely on Justice Kennedy’s acknowledgment that the term “navigable” in the Act must be given some meaning – an unremarkable observation, given that it was said by the Court in SWANCC.Balancing on that thin reed, the agencies then suggest that Justice Kennedy would insist upon some minimum “volume, duration, and frequency of the flow” in a tributary stream to authorize Clean Water Act protection for the stream and any adjacent wetlands, and say they “are considering whether the 2015 Rule’s definitions of ‘tributary’ and ‘adjacent’ were so broad as to eliminate consideration of these factors in a manner consistent with Justice Kennedy’s opinion and the CWA.” As discussed below, however, the Clean Water Rule is actually more faithful to Justice Kennedy’s approach than the proposed repeal.
- The Clean Water Rule reduces reliance on cumbersome case-by-case analyses.
The Clean Water Rule implements Justice Kennedy’s vision that regulations could be developed outlining categories of regulated waters. Justice Kennedy made clear that water bodies could be shown to have a significant nexus on a categorical basis, and all water bodies within those categories could be protected, even if specific individual waters in the class did not influence downstream water quality. This categorical approach follows that of the unanimous Court in U.S. v. Riverside Bayview Homes. In making these categorical judgments, the agencies’ ecological judgment about the importance of certain types of waters therefore need not be so refined that each and every water body within the category must, alone or cumulatively, have significant downstream effects. Waters qualify for Clean Water Act coverage on a categorical basis if the agencies reasonably conclude that a majority of waters in the category likely have a “significant nexus.” By contrast, the pre-Rule regime that the agencies want to re-institute relies heavily on an inefficient case-by-case approach.
- The Clean Water Rule protects tributaries consistent with Justice Kennedy’s approach.
With respect to tributary streams, the Clean Water Rule defined tributaries as those features having two identifiable indicia of sufficient flow: a bed and banks and an ordinary high water mark (OHWM). As the agencies explained in adopting the Rule, “[a] bed and banks and other indicators of ordinary high water mark are physical indicators of water flow and are only created by sufficient and regular intervals of flow.” The agencies are thus wrong to claim in the current proposal that “[t]he 2015 Rule did not require any assessment of flow.” This also means that the Rule’s approach easily fits with Justice Kennedy’s opinion. For one, Justice Kennedy’s opinion did not require any change from the pre-Rapanos categorical treatment of tributaries with just an OHWM as being covered by the Act (i.e., even without a demonstration of both a bed and banks and an OHWM), because he observed that it “may well provide a reasonable measure of whether specific minor tributaries bear a sufficient nexus with other regulated waters to constitute ‘navigable waters’ under the Act.” But the agencies went two steps farther; they added a new condition for being considered a covered tributary and examined an extensive scientific record to conclude that tributaries, as defined in the Rule, clearly had a significant nexus to downstream waters. In fact, when the EPA Science Advisory Board reviewed the proposed Clean Water Rule, it worried that the OHWM condition was unduly restrictive and may exclude important tributaries.
In addition, Justice Kennedy flatly rejected the idea – repeatedly alluded to in the proposed repeal – that infrequently-flowing streams should be excluded even where the evidence indicates they serve critical functions. For instance, in rejecting the plurality opinion’s imposition of consistent-flow requirements, Justice Kennedy said that such a standard “makes little practical sense in a statute concerned with downstream water quality.” He also noted that “Congress could draw a line to exclude irregular waterways, but nothing in the statute suggests it has done so,” and that “the Corps can reasonably interpret the Act to cover the paths of such impermanent streams.”
- The Clean Water Rule protects adjacent waters consistent with Justice Kennedy’s approach.
Justice Kennedy’s Rapanos opinion is the blueprint for the Clean Water Rule’s provisions for adjacent waters. Justice Kennedy held:
Through regulations or adjudication, the Corps may choose to identify categories of tributaries that, due to their volume of flow (either annually or on average), their proximity to navigable waters, or other relevant considerations, are significant enough that wetlands adjacent to them are likely, in the majority of cases, to perform important functions for an aquatic system incorporating navigable waters.
As noted above, the Clean Water Rule limited categorical protection for tributaries to those with two physical indicia of flow. It then examined whether adjacent waters, as defined, “perform important functions for an aquatic system incorporating navigable waters.” Based on a wealth of scientific evidence, the agencies concluded, “[t]he scientific literature, including the Science Report, consistently supports the conclusion that covered adjacent waters provide similar functions and work together to maintain the chemical, physical, and biological integrity of the downstream traditional navigable waters….”
Justice Kennedy drew support for his approach from the Supreme Court’s decision in Riverside Bayview, which Justice Kennedy pointed out took a “broader focus on wetlands’ ‘significant effects on water quality and the aquatic ecosystem….’”56 The Clean Water Rule’s science-based protections for adjacent waters likewise had that broader ecosystem focus; as the agencies found, “[s]cience demonstrates that this functional connectivity is particularly evident where covered adjacent waters are located within the floodplain of the [water body] to which they are adjacent or are otherwise sufficiently proximate to waters with no floodplain, such as lakes and ponds.”
- The Clean Water Rule protects other waters consistent with Justice Kennedy’s approach.
As noted above, Justice Kennedy’s test consists of an inquiry into the ecological functions performed by the kinds of waters being evaluated. For waters located within certain geographic bounds (e.g., within 4,000 feet of various other waters) or that are of certain types (e.g., prairie potholes), and that are not categorically covered, the Clean Water Rule demands exactly that – a case-by-case inquiry into ecological function.58 This individualized approach is well supported by the scientific record of the Rule. The Connectivity Report documents that “[w]etlands and open waters in non-floodplain landscape settings … provide numerous functions that benefit downstream water integrity, [including] storage of floodwater; recharge of groundwater that sustains river baseflow; retention and transformation of nutrients, metals, and pesticides; export of organisms or seeds to downstream waters; and habitats needed for stream species.” It also explains that “connectivity of non-floodplain wetlands occurs along a gradient, and can be described in terms of the frequency, duration, magnitude, timing, and rate of change of water, material, and biotic fluxes to downstream waters.”
In this proposal, however, the agencies now seem to suggest that non-navigable, isolated, intrastate waters should not be covered by the Clean Water Act in any circumstance. The proposal says: “The Court’s opinion in SWANCC also calls into serious question the agencies’ authority to regulate nonnavigable, isolated, intrastate waters that lack a sufficient connection to traditional navigable waters, and suggests that the agencies should avoid regulatory interpretations of the CWA that raise constitutional questions regarding the scope of their statutory authority.” The proposal also implies that Justice Kennedy also would reject Clean Water Act coverage for “isolated waters.
The Clean Water Rule is more faithful to Justice Kennedy’s opinion than the proposal, because the Rule allows for case-specific coverage of these other waters. Justice Kennedy’s characterization of the waters in SWANCC reveals that he did not view “isolated” waters as offlimits. Instead, he noted that the waters in SWANCC were understood to “bear no evident connection to navigable-in-fact waters,” indicating that if those same waters had an evident connection – i.e., one that could be established by applying the significant nexus analysis – Clean Water Act protection would be appropriate.
In the same vein, Justice Kennedy confirmed that wetlands separated by land from another waterway can be vital to it: if such a wetland is destroyed, “floodwater, impurities, or runoff that would have been stored or contained in the wetlands” could instead “flow out to major waterways.” The very absence of a hydrological connection could thus make protection of the wetland critical. Similarly, Justice Kennedy, in considering the wetlands on the Carabell site in Rapanos, said: “Given the role wetlands play in pollutant filtering, flood control, and runoff storage, it may well be the absence of hydrological connection (in the sense of interchange of waters) that shows the wetlands’ significance for the aquatic system.”
- The Clean Water Rule’s direction to evaluate significant nexus questions on a watershed basis properly implements Justice Kennedy’s opinion.
The proposal suggests that Justice Kennedy may not approve of the Clean Water Rule’s approach to evaluating waters’ potential significant nexus by looking at the cumulative effects of all similarly situated waters in a “single point of entry watershed.” Such a watershed is “the drainage basin within whose boundaries all precipitation ultimately flows to the nearest single traditional navigable water, interstate water, or the territorial sea.”
Specifically, the proposal paints a target on the Clean Water Rule’s ecological approach to determining significant nexus:
The agencies solicit comment on whether the agencies’ justification for the 2015 Rule’s interpretation of “similarly situated” with reference to an entire watershed for purposes of waters not categorically jurisdictional relied on the scientific literature without due regard for the restraints imposed by the statute and case law, and whether this interpretation of Justice Kennedy’s significant nexus standard is a reason, at a minimum because of the legal risk it creates, to repeal the 2015 Rule. As discussed, the 2015 Rule included distance-based limitations that were not specified in the proposal. In light of this, the agencies also solicit comment on whether these distance-based limitations mitigated or affected the agencies’ change in interpretation of similarly situated waters in the 2015 Rule.
However, neither the statute nor the case law supports a geographically cramped significant nexus analysis.
First, the Clean Water Act has no geographic constraints – it expansively defines “navigable waters” to mean the “waters of the United States.” Although the proposal suggests that because other provisions of the Clean Water Act have a watershed scope, the term “waters of the US” must be narrower, the agencies provide no textual evidence, case law, or legislative history to support the notion that these other provisions of the Act silently curb the scope of “waters of the United States.” In any event, even though the Clean Water Rule uses a watershed-wide analysis for assessing the impacts of certain water bodies on downstream waters, the Rule’s definition of “waters of the United States” is significantly narrower than “watershed.” The definition of “watershed” indicates it means “a region or area bounded peripherally by a divide and draining ultimately to a particular watercourse or body of water.” The Clean Water Rule does not regulate whole drainage areas or regions, but rather specific water bodies.
Second, the term “similarly situated” does not limit the geographic scope of Justice Kennedy’s analysis. Rather, the term simply indicates that when the analysis is performed, waters that are alike in kind should be considered together. Instead, the relevant geographical term in Justice Kennedy’s opinion is the phrase that follows “similarly situated” – namely, “in the region.” In this context, there is no reason to believe that Justice Kennedy’s focus on effects across a “region” would be limited to a small area, much less an individual stream segment. To the contrary, the dictionary definition of “region” includes, “a broad geographic area distinguished by similar features,” a definition that easily encompasses watersheds draining to a significant water body.
The Clean Water Rule’s watershed focus likewise aligns with Justice Kennedy’s approach. His opinion took a broad geographic view of what effects are important for water quality purposes; for instance, in rejecting the plurality’s “dismissive” attitude toward the resources at issue in the case, Justice Kennedy gave an example of the importance of wetlands on a huge geographic scale: “Important public interests are served by the Clean Water Act in general and by the protection of wetlands in particular. To give just one example, amici here have noted that nutrient-rich runoff from the Mississippi River has created a hypoxic, or oxygen-depleted, ‘dead zone’ in the Gulf of Mexico that at times approaches the size of Massachusetts and New Jersey.”
Therefore, despite the proposal’s astonishing and dispiriting claim that “[t]he agencies now believe that they placed too much emphasis on the information and conclusions of the Connectivity Report when setting jurisdictional lines in the 2015 Rule,” the agencies applied the significant nexus analysis properly in the Clean Water Rule. Justice Kennedy understood the significant nexus test to ensure the law was applied to features that had important impacts on traditionally navigable waters, thereby giving effect to the term “navigable” in the Act. He also understood the application of the test to be heavily dependent on the scientific evidence; for instance, in Rapanos, Justice Kennedy highlighted a number of facts that would be appropriate to consider in assessing the status of the specific waters at issue.
Thus, the agencies properly understood that performing a significant nexus analysis should examine water bodies’ effects across a defined watershed, and since the goal of that test is to ensure a linkage to waters more traditionally thought of as “navigable,” the agencies were right to look at “the drainage basin within whose boundaries all precipitation ultimately flows to the nearest single traditional navigable water, interstate water, or the territorial sea.”72 This approach comports with the science as well, as the Connectivity Report found that “[t]he incremental effects of individual streams and wetlands are cumulative across entire watersheds, and therefore, must be evaluated in context with other streams and wetlands.”
- The agencies rely on factors which Congress had not intended them to consider, namely whether a large or small number of water bodies were subject to the law’s protections.
In a last-ditch effort to justify their repeal, the agencies raise a number of questions about whether the Clean Water Rule covered substantially more waters than had been covered by the pre-Rule regime. They then suggest that, if there was a large expansion, it might run afoul of limitations they propose to find in section 101(b) of the Clean Water Act, though they entirely fail to specify what section 101(b) might disallow. Specifically, the agencies request comment on “whether the 2015 Rule significantly expanded jurisdiction over the preexisting regulatory program, as implemented by the agencies, and whether that expansion altered State, tribal, and local government relationships in implementing CWA programs.” Also, “[t]he agencies solicit comment on whether the agencies appropriately characterized or estimated the potential scope of CWA jurisdiction that could change under the 2015 Rule, including whether the documents supporting the 2015 Rule appropriately considered the data relevant to and were clear in that assessment.”
The agencies’ argument has several components. First, they suggest that the Rule overreached with respect to tributary streams because there is an apparent mismatch between the length of streams in state water inventory reports and in maps EPA provided to a House of Representatives committee. Second, they review the estimate the agencies made in 2015 of the percentage of “other waters” that could be covered by the Rule but were not being regulated under the pre-Rule regime and imply that the increase is problematically big. Third, they note that the waters at issue in SWANCC could theoretically be covered by the Rule, and question whether that shows the Rule went too far. Fourth, the agencies cherry-pick six jurisdictional determinations made under the pre-Rule regime which found waters to be non-jurisdictional, but which would or could have reached a different conclusion under the Rule. Finally, they discuss section 101(b) of the Act, and suggest that the agencies previously gave insufficient attention to the policy it announces.
Each of the agencies’ arguments for repealing the Rule based on newly-invented and undefined statutory limits on protecting waters fails. The Act’s protections have always been broad, consistent with Congressional intent and the Act’s text. To the extent that the Rule covered many waters, then, it simply confirmed the historic understanding of the Act’s scope. In addition, the facts available to the agencies demonstrate that they are completely wrong to suggest that the Rule greatly expanded coverage of streams and adjacent wetlands—as opposed to, say, clarifying and simplifying the Act’s coverage of many of those water bodies. Likewise, the other material the agencies cite in support of their argument that the Rule expanded coverage does not amount to anything. Finally, the Clean Water Rule gave due regard to section 101(b) of the Act.
- Congress intended for waters to be protected broadly, so it is unremarkable that the Clean Water Rule encompasses many waters.
The framing for this part of the proposal ignores the Clean Water Act’s history. Congress intended a very broad scope of the law’s protections and neither SWANCC nor Rapanos requires a retreat from that broad scope.77 Case law establishes that waters meeting the significant nexus test (at a minimum) should be covered to effectuate Congress’s intent while also giving effect to the word “navigable.” As Justice Kennedy found, the test ensures a proper scope of coverage: “as exemplified by SWANCC, the significant-nexus test itself prevents problematic applications of the statute.”Accordingly, the Clean Water Rule faithfully follows Justice Kennedy’s approach, as discussed above, and protects waters that Congress intended to be covered. The agencies’ suggestion in this proposal that the Rule ought to be repealed simply because it might apply to many water bodies – even though those waters have been found to have a significant nexus to traditionally navigable waters — therefore undermines Congressional intent.
The Act also contains several provisions that soften the regulatory impact for dischargers into “waters of the United States.” Congress was not willing to pretend that features were no waters, but instead opted to provide special rules for certain discharges. This is strong evidence that Congress understood and intentionally enacted the Act’s broad scope.
- The agencies lack evidence to conclude the Clean Water Rule greatly expanded the number of water bodies covered by the Act.
As the proposal recognizes, it is hardly new for opponents of the Clean Water Rule to argue that the Rule subjected countless waters to new regulation. The agencies specifically rejected these claims in the Sixth Circuit litigation: “Business and State petitioners’ hyperbolic assertions of a vast expansion of jurisdiction are based on false assumptions and fail to consider the pre-existing regulation’s scope and the Rule’s limitations and exclusions.”80 Yet the proposal identifies no new evidence that contradicts the agencies prior finding.
Moreover, because the Rule would legally change the outcome of only a tiny fraction of determinations involving tributaries and adjacent wetlands, the factual record evidence contradicts the agencies’ suggestion that the Rule effected a large expansion of the Act’s coverage in those categories. The available evidence indicates that, applying the pre-Rule regime, the Corps found 99.3% of streams presented for analysis to be jurisdictional, and it found 98.9% of adjacent wetlands to be jurisdictional. Accordingly, the evidence in the record belies the notion in the proposal that the Rule would cover many more of these features than the preRule regime. That supposition is central to the agencies’ conclusion that “the 2015 Rule appears to have expanded the meaning of tributaries and adjacent wetlands to include waters well beyond those regulated by the agencies under the preexisting regulations, as applied by the agencies.” It would be arbitrary and capricious to base any repeal on that disproven theory.
- Differing estimates of the length of streams do not indicate that the Clean Water Rule was an expansion of tributary coverage.
The agencies identify two different sources of information concerning the length of streams in each state – reports by states pursuant to section 305(b) of the Clean Water Act, and maps developed for EPA and subsequently shared with the House Science Committee. The agencies then note that the total stream length nationwide derived from these two sources is very different. They then suggest that the data reveal the agencies may have had a large misperception in 2015 about what the Clean Water Rule would cover or that the data indicate the Rule would greatly expand jurisdiction. Neither is true.
First, the two data sources on which the proposal relies do not provide information about the scope of either the pre-Rule regime or the Clean Water Rule. The agencies concede that they “are not aware of any national, regional, or state-level map that identifies all ‘waters of the United States,’” a fact that alone undermines the relevance of these datasets. Moreover, in sharing the maps with the Science Committee, EPA stressed – several times over – that the maps were not depictions of jurisdictional waters under any set of rules, including the then-proposed Clean Water Rule. By contrast, the agencies now raise “the possibility” that these maps might be somehow reflective of coverage under the Rule, a position urged by the Rule’s opponents. But the agencies identify no reason, much less any new evidence, to think that these maps are representative of the scope of the Clean Water Rule, or that the Rule contains some new requirement that would classify as jurisdictional many features that the agencies had not previously regulated as covered tributaries.
Second, the evidence suggests a simple explanation for the difference between the length of streams listed on the House Committee maps and contained in state section 305(b) reports. It appears that some state section 305(b) reports used tools with poorer resolution than those used to create the House Committee maps, which led them not to include streams that showed up on the House Committee maps. For example, Colorado used the 1:100,000 resolution version of the National Hydrography Dataset (NHD) to produce its section 305(b) report, whereas the House Committee map used the high-resolution (1:24,000 scale or higher) version of the NHD. This accounts for the different stream length estimates for Colorado. Similarly, when Wyoming used tools with the same resolution as the House Committee maps, the estimates are very similar; the state’s section 305(b) report indicates 280,804 miles of ephemeral, intermittent, and perennial streams in the state, compared with 269,872 miles estimated on the House Committee maps.
Third, although the agencies point to measurements of stream miles in Kansas as raising “similar concerns,” that case is likewise a red herring. The state has argued that there are far fewer streams that are considered “waters of the United States” compared to the total stream length in the state. The basis for the state’s estimate of the extent of stream miles considered to be “waters of the United States” is that “Kansas classified streams are WOTUS, with designated uses established and numeric water quality criteria used to assess and protect those uses.” However, in approving Kansas’s designation scheme, EPA made clear that “classified” streams and “waters of the US” are not one and the same; to the contrary, “classified” streams are not subject to numeric criteria, but they are subject to narrative criteria, and EPA notes that the identification of such “classified” streams “is not related in any way to jurisdiction as a ‘water of the United States;’ it merely refers to the designated uses and type of criteria that apply, as well as the manner in which Kansas keeps records of its waters.”
- The 2015 analysis of ORM2 records for “other waters” does not indicate that the Clean Water Rule is overbroad.
The agencies ask whether the 2015 consideration of “other waters” for the economic analysis supports a repeal. They write:
The agencies request comment on whether the projected increase for this category is most relevant to measuring the impacts of the 2015 Rule, whether the public had ample notice of the doubling of projected positive jurisdiction over the other waters category from the proposed to final rule, and whether the final rule could expand overall CWA positive jurisdictional determinations by a material amount inconsistent with the findings and conclusions that justified the 2015 Rule.
In particular, the agencies seek comment on the conclusions that were based on the method that estimated a 2.84 to 4.65 percent increase in overall jurisdiction, including the use of a method whereby the increase in assertion of jurisdiction in a particular category of waters (e.g., streams, wetlands, and other waters) was proportionally applied based on the raw number of records in a category relative to the total number of records across all categories in the ORM2 database, notwithstanding whether the regulatory changes in the 2015 Rule did not materially impact those other categories.
Nothing about this prior analysis supports a conclusion that the Clean Water Rule was overbroad.
First, the estimate of “other waters” likely to become jurisdictional in the 2015 Economic Analysis was intentionally conservative and in any event does not suggest that the Rule was over-protective. As the analysis notes, “[t]he agencies relied on certain conservative assumptions in their economic analysis that have the effect of consistently increasing the number of positive JDs that results from the new rule as analyzed against a baseline of recent practice.”
Second, although the agencies now seek comment on the 2015 assumption that the future jurisdictional questions would arise in the same proportion (streams/adjacent wetlands/other waters) as in the ORM2 database, the agencies do not suggest any reason to think that was an unreasonable assumption, do not identify any comments on the economic analysis that question the proportionality assumption, and do not suggest that there is some other more reasonable methodology for estimating the future number of different kinds of resources for which decisions would need to be made. Moreover, as discussed below, the agencies did not merely apply a proportional approach; they presented a generous range of potential impacts by also including a scenario where the estimate for “other waters” that might be covered was doubled.
Third, the Rule is not overbroad simply because the final 2015 analysis included an estimate of the economic impacts resulting from a “doubling of projected positive jurisdiction” in the “other waters” category. In 2015, the agencies considered that it was possible that their economic estimates would not adequately account for people who, under the pre-Clean Water Rule regime, “assumed their waters to be non-jurisdictional” without checking with the agencies. Consequently, they used a doubling factor as an attempt to provide some estimate of the impact of the rule if many people avoided the jurisdictional determination process, but acknowledged “[t]here is little evidence from which to infer how many landowners did not request jurisdictional determinations under recent practices, but whose holdings would be found to be jurisdictional under the rule.”
Because the estimates made in 2015 of the Rule’s impacts on “other waters,” including the agencies’ attempt to account for one possible source of underestimation, were entirely reasonable, and because the agencies offer no alternative reasonable estimates, the 2015 estimates should be used today. And because the agencies do not substantiate any claim that these reasonable estimates reveal the Rule unlawfully covered waters, the ORM2 data analysis provides no basis to repeal the Rule.
- The Clean Water Rule is not overbroad like the application of the “Migratory Bird Rule” was in SWANCC.
The agencies latch on to a familiar claim by opponents of the Clean Water Rule, namely that it would effectively re-adopt the Migratory Bird Rule at issue in SWANCC. In particular, they now “solicit comment on whether the 2015 Rule is flawed in the same manner as the Migratory Bird Rule, including whether the 2015 Rule raises significant constitutional questions similar to the questions raised by the Migratory Bird Rule as discussed by the Supreme Court in SWANCC.”94 Similarly, the agencies suggest that, because the waters on the site at issue in SWANCC could theoretically be protected under the Rule, that may be evidence that the Rule is too broad. These potential justifications are incorrect and do not support a repeal.
Objections that the Clean Water Rule revived the Migratory Bird Rule have been rejected before – by the agencies themselves – and they offer no new reason to think those objections are valid. As the agencies stated when they promulgated the Clean Water Rule:
The rule does not establish jurisdiction based on the Migratory Bird Rule. In fact, the agencies have explicitly deleted the (a)(3) provision from the existing regulation that was interpreted by the Migratory Bird Rule. In addition, the agencies’ conclusions that certain categories of waters are jurisdictional are not based on an “any connection” theory; instead they are based on careful examinations of the science and the law to conclude that particular categories of waters significantly affect the chemical, physical, and biological integrity of a traditional navigable water, interstate water, or the territorial seas. Further, for those limited waters for which the agencies will perform a case-specific significant nexus analysis, there is no authorization for considering migratory birds in the rule and the preamble is explicit that non-aquatic species or species such as non-resident migratory birds do not demonstrate a life cycle dependency on the identified aquatic resources and are not evidence of biological connectivity for purposes of the rule. Finally, while commenters argued that under the proposed rule the agencies’ authority to assert jurisdiction is limitless, the final rule provides explicit limitations on the agencies’ authority to make case-specific determinations. Case-specific determinations of jurisdiction are only authorized for five specific types of waters under (a)(7), and for waters located within the 100-year floodplain of a traditional navigable water, interstate water, or the territorial seas and waters located within 4,000 feet of the ordinary high water mark or high tide line of an (a)(1) through (a)(5) water under (a)(8).
Moreover, as discussed above, Justice Kennedy explains how waters physically separated from the tributary network can satisfy the significant nexus test. Accordingly, the possibility that the Clean Water Rule may cover the SWANCC waters themselves, if evidence were adduced showing they have the relevant connection to traditionally navigable waters (i.e., not a connection based solely on the presence of migratory birds, which is what the Court rejected in SWANCC), is completely in keeping with Justice Kennedy’s understanding of the appropriate scope of the law.96
- The Clean Water Rule is not overbroad simply because the agencies identify a few instances in which the Rule might protect a water body but the pre-Rule regime did not.
The proposal contains a long discussion of a tiny subset of jurisdictional determinations, apparently chosen to make the point that the Clean Water Rule could cover some waters that the pre-Rule regime did not. These cherry-picked cases are completely irrelevant. The agencies and the public knew that there would be some instances in which the pre-Rule regime and the Rule would lead to different conclusions — indeed, much of this proposed repeal is devoted to a discussion of the prior estimates of how often that might happen. And the agencies do not offer any reason now to think that these particular examples are improper exercises of jurisdiction.
Moreover, an examination of the agencies’ hand-picked cases reveals that they do not meaningfully bear on the question of whether the Clean Water Rule results in an unlawfully overbroad – or even unwise — scope of Clean Water Act protections.
First, the example from Chesapeake, Virginia (NAO-2011-2269), appears to be a prime example of how the Clean Water Rule was clearer, more predictable, and more grounded in the science than the prior regime. That case involved a wetland approximately 80 feet from a recognized water of the U.S. Under the pre-Rule regime, the wetland would seem to qualify as an “adjacent” wetland (as 80 feet – less than the distance between home plate and first base – is “nearby” on any reasonable understanding of that term), but the reviewer deemed it “isolated.” (The reviewer also used the term “adjacent” at one point, indicating that the reviewer may have been confused about how to analyze the feature.) By contrast, the Clean Water Rule clearly would identify the wetland as adjacent, because it is within 100 feet of a tributary. Moreover, whereas the reviewer speculated that the wetlands were “located far enough away from both of these tributaries that I would not expect them to trap pollutants, influence base flow, or in other ways affect the chemical, physical, or biological integrity of either of these waters,” the agencies reasonably concluded, in reliance on the scientific evidence assessed in the Connectivity Report, that “[l]ocation within the floodplain and proximity ensure that the aquatic functions performed by covered adjacent waters are effectively and consistently provided to downstream waters.”
Second, the examples from Toledo, Ohio (2004-001914), Mississippi County, Missouri (MVM2014-460), and Greensboro, Vermont (NAE-2012-1813), provide no information from which one can judge whether it was reasonable to conclude that the wetlands in question would be covered under the Clean Water Rule. For instance, the agencies’ documentation does not indicate whether the wetlands are within the floodplain of the nearest tributary, nor does it contain any case-specific assessment of significant nexus.98 Absent that information, these cases are irrelevant to assessing whether the Clean Water Rule or the pre-Rule regime is substantively preferable.
Third, the example from Campton Hills, Illinois (LRC-2015-31) contains a mix of waters that the Clean Water Rule handles substantively better than the pre-Rule regime and one for which information is insufficient. That determination addresses two floodplain wetlands within 1,500 feet of the tributary stream, and one non-floodplain wetland that was previously mapped as “prior converted cropland.” With respect to the two floodplain wetlands, the Clean Water Rule would clearly and predictably identify them as covered because of their floodplain location and distance from the tributary, and the Rule had good reason to do so; the agencies found, based on the Connectivity Report, that “[s]cience demonstrates that … functional connectivity is particularly evident where covered adjacent waters are located within the floodplain of the traditional navigable water, interstate water, the territorial seas, covered tributary, or impoundment to which they are adjacent….” 80 FR at 37,069. By contrast, the agencies’ documentation does not contain any information from which one can judge whether it was reasonable to conclude that the non-floodplain wetland would be covered under the Clean Water Rule, and there are indications that the conclusion was in error – namely, the feature might qualify for the “prior converted cropland” exemption in the Clean Water Rule (e.g., 33 C.F.R. §328.3(b)(2)), and it also does not obviously have a significant nexus.
Finally, the example from Butler, Pennsylvania (LRP 2014-855), does not even involve a situation where waters were judged not to be covered by the Clean Water Act under the pre-Rule regime and agency staff believe the answer would be different under the Clean Water Rule. Rather, this is a case of wetlands that would be judged on a case-by-case basis under the Clean Water Rule, as they were prior to the Clean Water Rule.
- The Clean Water Rule takes appropriate account of section 101(b) of the Clean Water Act.
The proposal invokes section 101(b) of the Clean Water Act more than a dozen times as a potential reason to repeal the Clean Water Rule. For example:
- “[T]he agencies request comment on whether the 2015 Rule’s use of the 100-year floodplain as a factor to establish jurisdiction over adjacent waters and case-specific waters interferes with States’ primary responsibilities over the planning and development of land and water resources in conflict with CWA section 101(b). The agencies also seek comment on to what extent the 100-year floodplain component of the 2015 Rule conflicts with other federal regulatory programs, and whether such a conflict impacts State and local governments.” •
- “The agencies’ broadening of certain key concepts and terms relative to the prior regulatory regime means that the agencies can potentially review the ‘vast majority’ of water features in the country under the 2015 Rule, unless those features have been excluded from the definition. *** The agencies seek comment on that analysis and whether the 2015 Rule readjusts the federal-state balance in a manner contrary to the congressionally determined policy in CWA section 101(b).”
Despite the proposal’s repeated suggestion that section 101(b) somehow acts as a limit on what can be considered “waters of the United States,” it utterly fails to show that the Clean Water Rule is inconsistent with that provision of the Act. In fact, the agencies do not even attempt to explain what limits they think section 101(b) might impose, or how they would go about identifying situations where protecting a water body would go too far. Perhaps the agencies think they know a section 101(b) violation when they see one, but that is not a rational basis on which to base a regulatory action like this repeal.
The two examples quoted above reveal the emptiness of the agencies’ section 101(b) concept. First, with respect to the Clean Water Rule’s use of the floodplain to help identify covered waters, the agencies cite prior comments claiming that doing so might somehow conflict with local floodplain planning and management. But those comments just offer bald unsupported allegations,99 and the agencies’ proposal does not substantiate the allegations, much less reveal how the Rule’s consideration of the floodplain runs afoul of section 101(b). Second, the notion that the Clean Water Rule authorizes the possible review of the jurisdictional status of a vast number of water features nationwide says nothing about whether the Rule goes too far. Both the pre-Rule regulations and the pre-Rule policy/guidance regime also permitted the agencies to “potentially review” virtually any water feature in the country, yet the agencies identify no tension between those approaches—which they say they are now re-implementing—and section 101(b). Moreover, the agencies fail to explain how subjecting water bodies to review to determine whether they are covered by the Clean Water Act may undermine Congress’ policy in section 101(b).
The agencies also have previously explained how the Clean Water Rule is consistent with section 101(b) and they do not provide any reasonable explanation in the proposed repeal why those prior explanations are faulty. For instance, in 2015, the agencies stated:
Some commenters stated that the proposed rule was inconsistent with the CWA because it impinged on the role of States to “prevent, reduce and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources.” Section 101(b). To the contrary, the agencies recognize that States and tribes play a vital role in the implementation and enforcement of the CWA. Nothing in this rule limits or impedes any existing or future state or tribal efforts to further protect their waters. States and tribes, consistent with the CWA, retain full authority to implement their own programs to more broadly and more fully protect the waters in their jurisdiction. Under Section 510 of the CWA, unless expressly stated, nothing in the CWA precludes or denies the right of any state or tribe to establish more protective standards or limits than the CWA. Many states and tribes, for example, regulate groundwater, and some others protect wetlands that are vital to their environment and economy but which are outside the scope of the CWA.
Thus, rather than creating conflict with section 101(b), the agencies found that the Clean Water Rule respected the role of states and tribes.
Finally, section 101(b) poses no obstacle to the Clean Water Rule because the Rule was based on Justice Kennedy’s significant nexus analysis and because Justice Kennedy concluded that protecting waters consistent with that test ensured compliance with the Clean Water Act as a whole. Indeed, Justice Kennedy spoke directly about section 101(b), and found no problem with fully enforcing the Act:
As for States’ “responsibilities and rights,” §1251(b), it is noteworthy that 33 States plus the District of Columbia have filed an amici brief in this litigation asserting that the Clean Water Act is important to their own water policies. See Brief for States of New York et al. 1–3.These amici note, among other things, that the Act protects downstream States from out-ofstate pollution that they cannot themselves regulate. Ibid.101
Therefore, the agencies have no basis to repeal the Clean Water Rule based on section 101(b), especially given their abject failure to define or explain what their re-imagining of section 101(b) might disallow.
II. THE PROPOSAL IS “WITHOUT OBSERVANCE OF PROCEDURE REQUIRED BY LAW.”
The agencies violated several basic procedural norms in this proposal. As a result, it would be unlawful to finalize the proposal without correcting these errors.
- The comment period on the proposal was too limited to allow a meaningful opportunity for public participation.
The agencies only allowed 30 days for public comment on this new proposed repeal. That abbreviated time is unlawful.
Both the Administrative Procedure Act and the Clean Water Act require meaningful time and opportunity to comment on proposed rules. The APA directs that agencies undertaking rulemaking allow “interested persons an opportunity to participate,” and empowers courts to invalidate agency decisions where the length of the comment period is “arbitrary and capricious” or “an abuse of discretion.” The Clean Water Act similarly provides that “[p]ublic participation in the development, revision, and enforcement of any regulation, standard, effluent limitation, plan, or program established by the Administrator or any State under this Act shall be provided for, encouraged, and assisted by the Administrator and the States.”
The opportunity afforded stakeholders to comment on this proposal pales in comparison to that associated with the Clean Water Rule. The agencies published the Clean Water Rule proposal in the Federal Register on April 21, 2014, and the comment period ended on November 14, 2014 – a total of 207 days. Such a period is reasonable in view of the significance of the definition of “waters of the United States” to the proper implementation of the Clean Water Act. The agencies’ initial repeal proposal acknowledged as much, stating that the “scope of CWA jurisdiction is an issue of great national importance,” one that warrants “robust deliberations” about the law’s coverage. And there is no question that this rulemaking is about the Clean Water Act’s scope, and that this is the first time the agencies are expressly soliciting comment on that issue (or at least, on the artificially-limited portion of that issue that the agencies would like to hear about – namely, why they should repeal the Rule). Having apparently realized the unlawfulness in their first repeal proposal of refusing to accept comments on the merits of the Clean Water Rule,105 the agencies now seek comment in this proposal exclusively about the merits of every aspect of the Rule.106 (As described above, the agencies seem conspicuously less interested in hearing about the flip-side of their proposal, every bit as relevant, which is whether the pre-Rule regime they intend to enforce is itself good policy.)
At a minimum, this brief period of time is arbitrary and capricious and an abuse of the agencies’ discretion. The period is not even 15 percent as long as the Clean Water Rule’s comment opportunity. Moreover, the time provided is half as long as the presumptive minimum comment period for run-of-the-mill rulemakings pursuant to Executive Order 12,866,107 rendering it manifestly unreasonable for an action, like this one, “of great national importance.”
- The agencies’ plan to codify rules they do not propose to enforce and to enforce rules they do not plan to codify is unlawful.
The agencies do not correct a fundamental procedural flaw that we identified when the repeal was initially proposed: the rules the agencies propose to codify are not the rules they propose to enforce, which will be unwritten.108 The agencies may not propose one rule for the Code of Federal Regulations while proposing to follow in practice a different and ambiguous set of unpublished rules. Enacting one rule while proposing to enforce some other vaguely-described rules violates the agencies’ obligation to give notice of the proposal and also violates the proscription against “secret law.” For instance, if the agencies intend to treat the “guidance documents” as the law, they must go through the notice-and-comment process to codify the requirements of those documents. And the agencies are exacerbating this problem because, as described above, in the present proposal they are suggesting they will not even follow the (themselves ostensibly discretionary) guidance documents, but will put some brand-new, even more restrictive gloss on those documents—one that remains entirely unwritten and unclear.
- Former Administrator Pruitt’s unalterably closed mind infects this entire repeal rulemaking.
Before the first repeal proposal, through the agencies’ action to suspend the Clean Water Rule, and thereafter until he resigned in the face of numerous ethical investigations, former Administrator Pruitt had an unwavering intention to repeal the Rule.109 His mind was entirely closed to the concept of leaving the Rule in place in any form. Administrator Pruitt’s years-long campaign to undo the Clean Water Rule is as egregious an example of a biased decision-maker as possible. His intent, evidenced by numerous statements and falsehoods about the Rule, could not be plainer. If the Due Process Clause is to have any meaning with respect to rulemaking by decision-makers with closed minds, this repeal cannot stand.
The agencies may attempt to argue that Administrator Pruitt is gone, such that his views on this rulemaking are no longer relevant. However, he signed this supplemental proposal – it represents his plan for the Clean Water Rule – and the agencies’ refusal to provide a meaningful comment period on the proposal reveals that they have no openness to reconsidering a complete repeal of the Rule in response to public comment.
- The agencies deprived the public of a meaningful opportunity to comment by seeking support for conclusions they wish to reach.
The notice-and-comment rulemaking process should be straightforward: an agency proposes a regulation and identifies the evidence that supports the proposed policy, enabling stakeholders to comment on whether the policy is sensible and supported by the facts. Time and time again in the repeal proposal, however, the agencies toss out a conclusion they might reach – which would support their drive to repeal the Clean Water Rule – and ask commenters to provide information to back up that conclusion. On multiple occasions, the evidence the agencies ask for is information that the agency should have; for instance, the agencies request comment on whether the waters on the SWANCC site would be jurisdictional under the Rule, “to what extent the 100-year floodplain component of the 2015 Rule conflicts with other federal regulatory programs,” and the “number and scope” of intrastate or physically remote wetlands that would be covered by the Rule.
This upside-down process unlawfully denies the public a meaningful opportunity to comment. Stakeholders will be unable to challenge materials submitted by proponents of the repeal. Denying the public that opportunity is particularly dangerous in this rulemaking because, as the foregoing comments make clear, much of the material that the agencies have cited as evidence supporting a repeal is irrelevant and misleading.
The agencies’ second attempt to repeal the Clean Water Rule is longer and adorned with various citations to the statute, court decisions, and materials in the record. But that is just window dressing. The current repeal proposal is as unsupported and unsupportable as its predecessor. The agencies must withdraw this proposal.
Jon P. Devine, Jr. Director of Federal Water Policy & Senior Attorney Natural Resources Defense Council