Last week, the U.S. Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (USACE) promulgated the Waters of the U.S. Rule, a regulation that purports to clarify which waters of the United States are subject to federal jurisdiction under the Clean Water Act (CWA).
The CWA regulates the discharge of pollution into navigable waters. Rather than limit the definition of “navigable waters” to mean waters that are interstate and “navigable in fact,” the Clean Water Act broadens the definition of “navigable waters” so as to include non-navigable waters, in order to afford federal regulators a greater degree of environmental oversight. Federal jurisdiction, therefore, extends beyond waters that are strictly “navigable.”
However, the Clean Water Act fails to establish an exact limitation on federal jurisdiction over non-navigable waters. Thus, Congress has failed to define precisely the term “navigable waters.”
The Supreme Court also has failed to define the boundaries of federal power under the Clean Water Act. In 2006, the Court reached a confused 4-4-1 ruling in Rapanos v. United States (2006).
- Four left-leaning justices effectively ruled that there are no limits on federal jurisdiction.
- Four right-leaning justices took a common-sense approach, and ruled that federal jurisdiction is limited to “relatively permanent, standing, or continuously flowing bodies of water forming geographic features.”
- One justice (Kennedy) wrote that a water or wetland constitutes “navigable waters” under the Act if it possesses a “significant nexus” to waters that are navigable in fact or that could reasonably be so made.
Since 2006, lower federal courts have made hash of Rapanos v. United States. This makes sense. Rapanos resulted in three different interpretations, and none carried a majority. As there was no agreement in the highest court in the land, there was no reason to expect agreement in America’s lower courts.
Predictably, the EPA and USACE interpreted the Rapanos decision in the broadest possible fashion. These agencies seized on Kennedy’s impossibly ambiguous “significant nexus” test. In practice, a “nexus” (connection) between an alleged body of water and a navigable water is in the eye of the beholder. Simply put, the significant nexus test is broad enough to justify whatever jurisdiction the federal government chooses to seize.
The Waters of the U.S. Rule: the Basics
Last week, the EPA and USACE promulgated the Waters of the U.S. Rule, supposedly to “clarify” federal jurisdiction in the wake of the confusion sowed by Rapanos.
The federal government’s rulemaking suffered a number of egregious flaws, including:
- The EPA colluded with environmental special interests at the Sierra Club to manipulate the public comment period, in possible violation of federal anti-lobbying laws, as reported by The New York Times.
- Also, the EPA ignored state input during the public comment period, in blatant contravention of the principles of cooperative federalism established by the Clean Water Act.
The Waters of the U.S. Rule expands federal jurisdiction directly and indirectly. Both expansions are based on the concept of “significant nexus.”
- Direct expansion: In the wake of Rapanos, the EPA and USACE subjected certain classifications of alleged bodies of water (primarily ephemeral streams) to case-case-by-case “significant nexus” tests. In the rule published last week, these types of water bodies were rendered automatically subject to federal jurisdiction. They don’t have to undergo the “significant nexus” test. Rather, they are automatically in, because they are presumed to pass the nexus test. By moving such waters from the “significant nexus” test to being automatically included, the rule directly expands federal jurisdiction. The EPA estimates that this “direct” expansion would increase federal jurisdiction by 3 percent, but this is almost assuredly a lowball figure.
- Indirect expansion: The Waters of the U.S. Rule entrenches the “significant nexus” test, which results in a tremendous expansion of federal authority—potentially much more so than the direct expansion of federal authority. Basically, all the feds have to do to claim jurisdiction is to establish a “nexus” or connection between a water body or wetland and a navigable water or one that can be made so. And because there are no limiting factors on what constitutes a “nexus,” there’s little to stop the federal government. For example, given that there are two catchments in the U.S. (east and west of the Rockies), the argument can be made (and, indeed, will be made by EPA/USACE) that everything is connected.
Interpretive regulations like the Waters of the U.S. Rule are supposed to clarify, but the Obama Administration’s purpose was to confuse. After all, the “significant nexus” test is a case-by-case determination, which is inherently imprecise. This raises a crucial question: What’s the point of muddying the (interpretive) waters? The answer, alas, is that a federal government intent on expanding its jurisdiction welcomes ambiguity, because blurry lines are more easily crossed than are definitive boundaries. In this fashion, the Waters of the U.S. Rule codifies uncertainty, the opposite of what a clarifying rule is supposed to do.
What Happens Next?
The rule goes final in 60 days.
Litigation will be a giant mess. Federal court precedent suggests that federal questions posed by the Clean Water Act are to be answered in district court. The upshot is that the regulation will be challenged in scores of districts. There could be any number of rulings. Then, these decisions would have to filter up the chain, through the circuit courts, and ultimately to the Supreme Court. That would take a very long time (similar to the ongoing challenges of Obamacare, which also started in multiple district courts).
In Congress, there are multiple bills to check the Waters of the U.S. Rule.
- In the Senate, the lead bill in opposition to the rule is S. 1140. It is now in the Senate Environment and Public Works Committee, and enjoys bipartisan support. The measure has three Democratic co-sponsors, Sens. Heidi Heitkamp (N.D.), Joe Manchin (W.V.), and Joe Donnelly (Ind.). Supporters of the bill are hoping that moderates like Sens. Amy Klobuchar (D-Minn.) and Bob Casey (D-Penn.) will join them on the vote.
- Opposition is robust in the House. In late April, the House passed 240-177 a $34.5 billion energy and water spending bill. The bill includes a policy rider aimed at blocking the Army Corps from using funds to implement the Waters of the U.S. Rule. The upshot is that passing a companion bill to S. 1140 in the House of Representatives would be a sure thing.