Clean Water & the Rule of Law: Recapping 4 Years of Reform and the Path Ahead

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of Practice Group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Nick Marr:  Welcome, everyone, to The Federalist Society's Teleforum conference call as this afternoon, December 7, 2020, we're covering "Clean Water & the Rule of Law: Recapping 4 Years of Reform and the Path Ahead." I'm Nick Marr, Assistant Director of Practice Groups at The Federalist Society. As always, please note that expressions of opinion on today's call are those of our experts.

 

I'll be introducing our moderator who will then introduce our main speaker. So we're fortunate to have with us today Jeffrey Wood. He's a Partner at Baker Botts, and he'll be our Moderator on today's call. Prior to joining Baker Botts, he was acting assistant attorney general for the Environment Division at DOJ. And he's now also the Chair of the Environmental Law and Property Rights practice group here at FedSoc. So they're sponsoring today's call.

 

After I turn it over to Jeff and he introduces our speaker, we'll have a moderated discussion before going to some audience questions. So that'll be about halfway through the call. Be thinking of those as we go along and have them in mind for when we get to that portion of the call.

 

Without much further ado, thanks for being with us, Jeff. I'll hand the floor off to you.

 

Jeffrey H. Wood:  Great. Thank you, Nick. I really appreciate everyone joining us for today's call.     

 

Under the current administration, the U.S. EPA has adopted a variety of regulations and policies aimed at reforming then nation's water quality programs with a focus on cooperative federalism and rule of law principles.

 

We're pleased today to be joined by the current Assistant Administrator, David Ross, to hear his perspective on a range of topics concerning the administration's work on clean water issues. We hope to cover interesting topics including regulations related to the definition of waters in the United States, groundwater pollution, the enforcement of federal clean water laws, reforms of the state water quality recertification procedures, improvements to drinking water and waste water infrastructure, and a host of other topics.

 

Let me first begin by just saying a few words about my friend and former colleague, Dave Ross. Dave is the Assistant Administrator, has served in that role since January 2018. He, prior to joining EPA, had an impressive career in state government, having served with the director of the Environmental Protection Unit at the Wisconsin Department of Justice. During his tenure there, he served as the lead environmental prosecutor for the State of Wisconsin and worked closely with the Wisconsin Department of Natural Resources.

 

Mr. Ross has also worked in the Wyoming attorney general's office, representing water quality division of the Wyoming DEQ and has served as a partner in the land use of natural resources practice of a international law firm in Washington D.C. He received his law degree and masters from Vermont Law School and graduated with a bachelor's degree from the University of Wisconsin - Madison, so let me say on Wisconsin day.

 

With that, Dave, I'd love to hear your opening thoughts on the topic today, and then we'll have some time for Q&A and the audience involvement as well. So thank you again for joining us today. We're honored to have you here. Dave, the floor is yours.

 

David P. Ross:  Hey. Thanks, Jeff, and thanks for the on Wisconsin shoutout as I still live in Wisconsin and commute back and forth between D.C. and Wisconsin. It's a nice touch. Hey, thanks to The Federalist Society for hosting today's call. It's an important organization. You remind us of some of our core fundamental principles in this country, the freedom and the role of government in protecting that and preserving that freedom, separation of powers rule of law. Those are all bedrock principles that, quite frankly, I have carried into this current role.

 

      Jeff, it's great to have you introduce me and to spend some time discussing the Clean Water Act, both where we've been and where we may be going in the future. I miss our time working together when you were in the Department of Justice. We were able to work on some really important issues together. And so it is a great team over there. You left a great team in place, but I really enjoyed our time together.

 

Jeffrey H. Wood:  Thank you.

    

David P. Ross:  Yeah. Again, thanks for coordinating this.

 

      Some of the principles in which this organization are founded are probably why I have this job. I spent, before, as Jeff mentioned, I spent some time in Wyoming and Wisconsin working as a lawyer for the state. A lot of what I was doing was trying to figure out how to check federal overreach.

 

      I believe strongly in separation of powers under the environmental world, particularly Clean Water Act issues, cooperative federalism, and rule of law are very important to me. And particularly in the Clean Water Act and jurisdictional issues, you have a statute that was -- actually, it's a really powerful, effective statute, but some core terms were probably not precisely enough defined back 50 years ago. And we've been struggling with it for decades now.

 

      And Congress has been incapable of reigning in the Executive Branch. And so the states had to think about how to do that using the Judiciary. And so working for the State of Wyoming and Wisconsin, I thought a lot about how to make sure that the states are recognized as the lead regulators of their own natural resources.

 

      I don't talk about cooperative federalism and rule of law to get their talking points or because it's a ideology. I really talk about them because having worked for the states, I know that the states know their resources better than the people inside the Beltway here in Washington, D.C. It's about who makes decisions on the landscape that impact the people of those states, and the states do a really nice job at it.

 

      And so, one of the things I began when I took over this position is I came in thinking about how to reframe and rebalance the relationship between federal and state government. In an institution like this, it's pretty tough to do. Institutionally, even as the legal teams, they believe strongly in the mission here: protecting public health in the environment. And there's such an emotional connection to water that it's easy to begin with what is the objective? How do we achieve our objective? And forget a little bit about asking the first question which is what have we been charged to do by Congress, and what is our statutory authority to achieve our objective?

 

      And so early on, one of my very first touchstones, and I came back to it particularly almost every day over the first year, is when I'm dealing with my teams or dealing with the great legal folks that we get to work with. And the very first question that I will usually ask is give me a balls and strikes analysis, what is the baseline law? What's the statute? What are the regulations? Don't tell me how to achieve my outcome. Part of that is my decision. It's how to shape the policy to get an outcome. But what's the baseline? What's the rule of law?

 

      And I think probably the best example of that over the years, over the last couple years, has been in the waters of the United States rulemaking. It's been confusion as to the scope of federal jurisdiction under the Clean Water Act. What is a state water? What is a federal water? And I was the sort of next person in line to try to solve that longstanding problem.

 

      The first thing I did when I came in was I sort of I decided not to continue to try to implement the ways of the old world. I truly thought that our existing regulations, the 86 regulations, the overreach of the last administration in the 2015 clean water rule, rather than trying to tweak around the edges, I decided to break it down and build it back up, which is what is the scope of our statutory and constitutional authority? And how do we get back to our baseline direction which is protection of the navigable waters?

 

      And when we finalized our rule, our final rule, our step two rule, which is called the navigable waters protection rule, we named it very strategically. What do we need -- Congress told us to protect the navigable waters. And so what do we need to do that? And so our entire rule is based off of what is a core network in navigable waters? And then what is the tributary system, and how far up into the water's head do we need to regulate in order to protect the navigable waters?

 

      And in doing so, we really did rebalance -- there are actually state waters. And the states have full jurisdiction and the ability to regulate much more broadly than the federal government. And so what do we need to do to regulate those core waters and do so in a way that is both transparent and easier to understand in the landscape? And so we very much simplified the definition for C categories that the waters are in, just as importantly, very clear categories of waters that are out and then a more robust set of definitions on how to implement that new framework.

 

      Since we have finalized the rule in the past year, we have really focused on implementing and defending it in the courts. We have done fairly well so far in the early stages of litigation, whereas the 2015 rule was shot down in nationwide injunctions fairly early and then had a partial implementation over a couple of years.

 

And our rule is currently in effect in 49 states. It's shut down in Colorado, although its argument was fairly recent in the Tenth Circuit. We're hopeful that the Tenth Circuit will give us a fair assessment of what I think the District Court may have gotten a few things wrong. Although, that's not for the courts to decide, of course. But we're hopeful that the Tenth Circuit weighs in on the early litigation.

 

      Spent a lot of time thinking about implementation and training in the field staff and then finally answering the question of we don’t actually have maps about where our federal waters begin and ends. And so I've been working very strongly with our scientists here at EPA, an Army Corps of Engineer and over at Department of Interior and Department of Commerce on how to develop lasting maps that folks should be able to look on a map and know what is a federal water and a state water. It's going to take us some time to do that, but we've got a process up and running to do that.

 

      We got a couple other major rulemakings that I'll talk about, really focus on modernizing the Clean Water Act. Clean Water Act Section 401, the certification program, where if you have a federal government issue a permit, I think Wetlands permits are issued by the Army Corps of Engineer. The states get the opportunity to certify compliance for their water quality standards or impose additional conditions.

 

      Our federal rule on the book was older than the Clean Water Act itself, which is stunning. It was literally adapted the year before. The modern Clean Water Act was adapted in '72. And it was intention -- sorry, our '71 reg was intention with the Clean Water Act and was never updated. And so we modernized the new framework to provide fairly clear rules of the road as to when you need certification and how long you have -- a state has to issue a certification.

 

      The statute was pretty clear at no more than a year. Stunningly, we actually had to provide a rule to restate that because the states in some courts had sort of ignored that issue. And we are also really focused on what is the focus of the Clean Water Act? And that's to protect and preserve water quality and so, as you do a certification at state level, the Congress instructed us to be thinking about water quality and our modern regulations are focused on doing just that.

 

      And as we get into the Q&A session, I'm sure there'll be some questions about [inaudible 12:20] WOTUS and other topics I'm going to talk about.

 

      Ground water is what to do about discharges to ground water. The courts had setup some tension in that space, and early on in our administration, we tried to provide some interpretative guidance as to when you may need a Clean Water Act permit to discharge to groundwater if it would get to a water United States.

 

      Our interpretation was I think legally defensible. The Supreme Court earlier this year in May issued an opinion in the County of Maui case that was quite frankly a bit of an outcome-oriented decision. I think the Court was a bit concerned about what type of loopholes would be created if you could not regulate discharges through ground water.

 

      And so found an outcome that it wanted and then drafted an opinion to go after in a 6-3 opinion. Unfortunately, it answered the question about do you need discharges -- well, fortunately, it answered the question about do you need a permit to discharge the water or not? That was in tension with the lower courts. And the supreme Court answered that question yes, you do if you have basically the functional equivalent of a discharge through ground water.

 

      But it then created what I'm calling basically a Rapanos, the old Supreme Court decision in the WOTUS territory that created a lot of confusion in a plurality 4-4-1 decision. This court in the 6-3 decision, a relative majority, gave us an open-ended seven-factor test that will be quite frankly difficult to implement if you're a regulator or a member of the regulated community.

 

      And so this agency is working hard to try to provide a little bit of guidance in that space. I suspect long term, it's going to need a rulemaking to solve it. But in the next few days, I think you'll be seeing some activity out of the agency on providing some guidance on how to implement the County of Maui decision.

 

      Another area I focused on pretty extensively is how to get states interested in taking the 404 wetlands permitting program. 47 states have our surface discharge program, now the 402-permitting program. Congress intended the same result for the 404 wetlands permitting program, but to date, only two states have it, Michigan and New Jersey.

 

      And so when I came in, I took a pretty hard look at why. Are there a couple of impediments to the state taking it? Worked hard with our federal partners and here at the agency to overcome some of those impediments, and I'm happy to say that I've got about 10 states that are interested in the 404 program now. The State of Florida, which is a very public process happening right now, is in asking for us to approve their state assumption of the program. And statutorily, we're on the clock to issue a decision on that by December 17th. And you'll see some activity in that space. They had a rulemaking also trying to modernize the 404-assumption framework, but that rulemaking is still in progress.

 

      But I'll spend a few minutes now talking just a little bit -- so those are the big-ticket rulemakings we've done. At one point, I had at one of my divisions, 100 people and 50 people within that division working on ten major rules. We just have been extremely active over the last couple years in our regulatory reform initiatives. And it's been pretty busy quite frankly.

 

      But there are a couple other areas where I spend quite a bit of my time. And it's really -- folks are building a secure water future for the country and also improving the way we do business, improving government, securing a water sector future, kind of a 21st Century water economy. I've really focused on a couple of big-ticket initiatives that we quite frankly need to solve if we're going to have a secure water future.

 

      One is infrastructure. We've had $750 billion backlog in our water and wastewater infrastructure over the next 20 years, just to get to steady state. That's not growth. That's not new development. That's not new suburban areas. It's literally repairing old infrastructure. And so I've been spending a lot of time with our infrastructure finance folks, implementing our Water Infrastructure Finance and Innovation Act, or the WIFIA program, and implementing some grant in our loan programs to modernize water infrastructure.

 

      WIFIA, when I took over in April or in January 2018, we had not issued a single loan. By April, we issued our first loan under the WIFIA program. And over the last couple of years, we've now issued 40 loans, providing about 7.7 billion in credit assistance to help finance over 16 billion in water infrastructure, creating about 40,000 jobs and most importantly, saving the rate payers, because it's such a competitive loan program, about $4 billion in interest.

 

      And we've also been pretty flexible in the way we run this program. Since the COVID outbreak and we shut down government, we shut down life early in March, we've actually, through our WIFIA program, have saved rate payers over $1.5 billion through refinancing a new loan. So we're doing our best to provide financial relief to the communities in which our job is to serve.

 

      It doesn't matter how much money you spend in infrastructure and hard infrastructure if you don't have a workforce to run it. And I'm very, very worried about our human capital in the water sector. We have a retiring and aging population and also technologies advancing faster than we are training people. And so I initiated a national workforce initiative for the water sector this year and have been working with our federal and state partners to make sure that we have a pipeline of employees to run our drinking water and wastewater plants. Because the retirement profile over the next 5-10 years is pretty daunting.

 

      We're also thinking about new water. We've got some fairly significant areas of drought. 40 out of 50 states in the next decade anticipate some form of drought. Even wet states will have periods of drought. And so how do you find new water? Well, we discharge billions and billions of gallons of it every single day to our surface water.

 

And so I initiated a national water use action plan that the administrator announced with Secretary Bernhardt and Secretary Perdue and Chairwoman of CEQ Mary Neumayr in February, really focused on how to find new sources of water and doing a better job of reusing the water that we have so that we can continue to grow and be productive over the next 10, 15, 20 years. And so that's an initiative that is a legacy long-term initiative together with the workforce.

     

      I've been spending a lot of time thinking about ocean policy. We've got a trash marine plastics problem that is growing, particularly overseas. The United States is -- it does okay, not great. But compared to some of our overseas partners, we've got a lot of plastic getting into our oceans. And so this administration, I've spent a lot of time thinking about how to deal with marine litter, also how to encourage and use, basically, the blue economy or aqua culture resources along our coasts.

 

      Finally, I've also been thinking a little bit about how to use environmental markets to solve long-standing challenges, so think surface water, excess nutrients on surface waters, algae blooms, things like that. It's a problem that is not going away. And so rather than trying to redo some of the policies of the past, we've really been focused on using environmental markets and trying to bring private capital, private equity into solving the problem because it can't simply be solved through federal public financing.

 

      Last, and then, Jeff, I'll spend a few more minutes just talking about some internal initiatives and then I'll turn it over, I think, to get us into some back and forth. I've spent a lot of time thinking about how do we improve government. Things that you probably won't see in the outside world that are making a difference.

 

      So I actually issued a policy memo not too long ago to our regional administrators basically saying hey, comply with the law. It's kind of a shocking concept. We expect our regulated community to comply with the law, but then we don’t necessarily comply with the law ourself. And the Clean Water Act has very clear objectives for how to encourage the states to take the lead once states make decisions and when the federal government reviews and approves.

 

      And we frequently blow right past those statutory deadlines. And so I have developed some internal policies to accelerate and quicken our decision-making and defer more to the states. And so as a result, the number of TMDLs or pollution diets, total maximum daily loads, that we've approved have gone up by several thousand over the last administration. We've reduced backlogs in water quality standards that the states have submitted, have a higher percentage of approval of those state standards rather than second guessing them.

 

      Our entire water list backlog that states submit to the federal government, we don't have a backlog anymore. We're moving -- we've reduced the number of guidance documents that we have. We have virtually no FOIA backlog. In fact, last month, Office of Water got down to zero FOIA backlog despite the fact that we have more FOIA requests now than we ever have.

 

      So all this good government behind the scenes that folks don't realize but we're actually using our resources more effectively and working with and relying on our state partners rather than just second guessing them all the time.

 

      We've made our guidance documents available on the web, Office of Water initiative, before the President dropped an executive order. So we had already gotten rid of a couple of hundred guidance documents, and we're going to make them available on our web. And the President mandated for a hold the government approach, which is fantastic.

 

      How do I institutionalize some of the work that we've been doing? And I can go on and on, but I'll turn it over before I extend to questions is I recently -- I've worked in local, state, and federal government. Government will regress to the mean, so you can make some changes but over time, they'll regress to the mean.

 

      And so to try to make sure that we don't regress all the way back to the mean from where I started, I have just recently initiated an internal reorganization to make our Office of Water more business-oriented from getting work done, spending taxpayer money more efficiently. So we just got that through, made the notification that Congress and institutionalizing some of the changes that we've made.

 

      The last thing I'll quickly mention is fixing government, improving government hasn't just been focused on my core job. One of the most exciting things I've done over the last couple years and the President just memorialized it, an executive order on modernizing the American water resource management and water infrastructure.

 

      We've been working with the Water Subcabinet, so the six major federal agencies with money in water policy. So EPA, Department of Interior, Department of Energy, Department of Commerce, Army Corps of Engineer, the major Department of Agriculture. So the six agencies that oversee water policy, folks in my level, whether that's undersecretary or assistant administrator style level, have been getting together at least once a month for the last couple years to integrate and coordinate on major policy initiatives.

 

      And so my water reuse action plan, for example, was helping Department of Interior and Bureau of Reclamation in drought concerns out in the Colorado River. And Department of Energy was doing a Grand Water Security Challenge. And so my contribution to Department of Energy and Department of Interior and the Department of AG leading irrigation water was the national water reuse action plan.

 

      All those agencies came together to develop -- finding new sources of water. That kind of coordination hadn't exist in the past, it should've. It didn't. And so we both had been working on it behind the scenes and the President just formalized it going forward. And it's something that I really hope sticks. Rather than working in silos, we're actually coordinating the efficient use of taxpayer resources, not only within our own agencies but across the whole government.

 

      So it's pretty exciting stuff, something I've been focused on over the last couple years quietly. And I'm excited to see it come into the light and hopefully it sticks. So with that, Jeff, I think I'll slow down there and maybe turn it over to you to moderate a little bit both you and I and then Q&A after that.

 

Jeffrey H. Wood:  Great. No, thank you, Dave. This has been wonderful. Let me just encourage the audience in thinking about questions that you might want to raise and, in a few moments, I'll ask Nick to open the lines for audience questions.

 

      But let me start, Dave, with what I think is probably fairly identified as the biggest accomplishment under your tenure. And I don't think it can be overstated that getting the Navigable Waters Protection Rule out the door, promulgated, and then in place in virtually every state except one is a significant change and accomplishment.

 

      I've been following the WOTUS issue for two decades. I remember being a law student and hearing about it and studying the confusion across the country about what is jurisdictional and what is not. And so under the new rule that you've led the promulgation of, I think having that in effect is significant.

 

Looking back to the Obama administration under their clean water rule, it was blocked by multiple courts early on and never really went into effect. And at least in that scorekeeping, that's one point in your column.

 

I'm curious, you mentioned implementation and training of field staff and all the work that's going on there. I assume all this being implemented so JD requests that are going in are being reviewed under the new rule for, I guess, all 49 states. Where can folks go to learn more about how the rule's being implemented, training that's happening, and that sort of information? And are there places where they can go with questions as they try to figure out where lines are being drawn?

 

David P. Ross:  Yeah. And its implementation was -- I was working implementation even as we were finalizing the rule. It was in addition to our step one, so remanding and taking the 2015 rule off the books, putting the '86 back in play for a little bit and then dropping the navigable waters protection rule. It took a significant amount of effort.

 

      But we were also working on implementation knowing that since we were starting over, effectively, with the new rule, we had to make sure the staff were trained to understand it to implement it in the field. And so we developed a series about four or five both memorandums of understanding or agreements with the Army Corps of Engineer and the Department of Agriculture and some of our other partners to establish a framework for how do you work and answer questions.

 

So we have started up technical review teams with the Army Corps of Engineer and EPA regional offices and a process for fleeting up difficult questions and so which get to headquarters fairly quickly. And they also have developed some training for both our internal and then the outside world.

 

      EPA's got an implementation website. So if you go to the Navigable Waters Protection Rule, you can click through some of the implementation materials, and you'll see some of the baseline background questions, some of the guidance that we have in place. And then also there's a who to contact basically of internal expert teams who are fielding questions.

 

      And so implementation was key for me, wasn't just going to sign the rule, pat yourself on the back, and walk away. It was making sure that folks coming from new JDs, they understand the process.

 

Jeffrey H. Wood:  Well, Nick, I think we're ready to go to audience questions or at least encourage folks to go that way. So why don't you kick that off for us, and if we have a question or two, we'll go there and if not, I've got some more.

 

Nick Marr:  Okay, great. Thanks to you both. So we'll wait a second here, Jeff.

 

Jeffrey H. Wood:  All right. Well, while we're waiting, let me just throw one other question out to you, Dave, and we'll make it a short one. But you mentioned the Water Subcabinet. That seems to be an area where any future administration would want to continue to keep that in place. It elevates the issue of water quality, water infrastructure to a more senior status within the federal government. How do you see that playing out?

 

David P. Ross:  Well, I really -- it was a tool I wish I had when I came in. I wish our administration had when it came in. And so it's good government. It's efficient use of taxpayer resources in aligning water policy. Each of our agencies have slightly different missions, whether or not it's water supply or flood control. But we're all aiming in the same direction and that's making sure we have a sustainable resilient water economy.

 

      And so I hope -- there's certain things that will be unwound just because it was this administration and so someone will want to do it differently because that's the world we live in. But this is one that I truly hope they hit the pause button and think about it before they unwind something like this because it's good government. And so it's -- we'll see. But it's something that I hope is a legacy piece.

 

Jeffrey H. Wood:  All right. Nick, any audience questions waiting?

 

Nick Marr:  So we don't have any right now. But, Jeff, I'll give it back to you and we'll continue the discussion.

 

Jeffrey H. Wood:  Yeah, no problem. So one of the other topics that you mentioned, Dave, was oceans and plastics pollution, oceans policy. I know Chairwoman Neumayr has been a real leader on this topic, as have you. And it's an area where I think a growing recognition around the county and around the world, it is a leading environmental quality problem and issue. Could you just recap briefly for us where things stand there and some of the things that ya'll have put in place over the last few years?

 

David P. Ross:  It's definitely been both Chairwoman Neumayr -- Administrator Wheeler has made it one of his key issues to talk about. From an Office of Water standpoint, we have, obviously, a fairly significant role to play. We had a couple of voluntary programs called our Urban Waters program and our Trash Free Waters program. And what we did is try to incorporate Trash Free Water concepts into some of our federal funding.

 

      We have a bunch of GO programs, like the Great Lakes Program around the country and elevated the trash free component into some of the long-term decision-making to make sure that they're spending money looking at basically plastics control, trash control before they get to our surface waters.

 

      In the oceans policy side, there's been a significant amount of work, an executive order looking at blue economy. So how do you make better use of and open up our offshore environment, things like aquaculture, incentivizing use of growing fish and other protein sources offshore. There's a significant amount of work that's happened there.

 

      But where I think globally, this is where EPA sort of exports its knowledge to external countries or other countries. At the end of the day, trash and water is not about capturing it at the pour point, which is a very expensive way to think about the world. It's about better source control where it's generated.

 

      So our waste management system, our recycling systems, before anything ever even hits water is fairly robust in this country but not so well developed in overseas. There are about six Asian countries that struggle and where a huge quantity of trash and plastics introduced into the oceans through those six countries. And so we're spending time trying to export our source control management. So before it hits the water, that's the cheapest, best way to manage it. But if it does hit the water, how to manage it when it does, and so we've been really exporting that knowledge and administrators have really been focused on it.

 

      People tend to think they want to start talking about microplastics and public health effects, but we still have to figure out the macroplastic. How do you stop it from getting into the water reservoir to begin with?

 

Jeffrey H. Wood:  Right. Right. Well, I'm also curious about the work on 401 water quality certifications. You talked about the importance of cooperative federalism and the rule of law and looking at your own background, how imperative it is to have that state perspective when you approach each environmental issues in the cooperative federalism regime in which we operate.

 

      This administration had a 401 water quality certification of rulemaking and has undertaken some significant reform there. And there is a bit of tension, natural tension I would say, between the desire for more expedited permitting and approvals in addition to respecting the rule of the states under 401 to make their views known and to certify federal licenses and permits based on state water quality standards.

 

      So just really curious how you see that playing out. If you could comment a bit on the importance on 401 reform to streamlining infrastructure and other projects while also keeping in mind the cooperative federalism aspects.

 

David P. Ross:  Yeah. An interesting thing about cooperative federalism -- that's why I began this talk with my basic approach was rebalancing. And so in the WOTUS rulemaking, for example, it's rebalancing the distribution of power. The federal government had grown in power over the last couple of decades despite getting knocked down a few times.

 

      The Supreme Court kept growing back, and so redistributing power to reestablish its relationship between states and the federal government. In the 401 world, it's actually redistributing power back towards ensuring -- and some people are saying we've taken a bit of power from the states to manage whatever condition they want even if it's not related to water quality.

 

      And so we've been criticized for taking power from states, and that's why I focus on rebalancing. Again, what is the base statutory authority? What is our role in reframing and rebalancing that relationship? The states have an absolute critical role to play in 401. At the end of the day, it is still a state program.

 

      But the regulated community has an expectation, if you're doing infrastructure development, not to get caught in a regulatory do loop. And unfortunately, the way some states have run their programs and quite frankly having been in the states, I can tell you the FTE or the amount of people working on 401 issues across the states is not very high.

 

And so as you try to shuffle the stacks of paper on your desk, the certainty that the outside world is looking at the developed infrastructure, spend money, grow the economy is hampered a bit by the regulatory do loop that the 401-program had. And so our job was to make sure the shot clock that Congress established is recognized, that people do their work, government does its work as they're charged to do by Congress, and so we can make decisions faster.

 

      Whether or not it's a thumbs up or a thumbs down, the regulated community at least knows what the answer's going to be on a reasonable time period. And if there are going to be imposed conditions, it better be related to water quality because at the end of the day, it's called the Clean Water Act.

 

And the lands use planning components, I've seen certifications where people are developing trails and doing all sorts of cool lands use related things, but Clean Water Act is not a land use statute. It's a water quality statute at face, and we tend to forget that from time to time.

 

Jeffrey H. Wood:  Nick, any audience questions pending?

 

Nick Marr:  One just popped up actually. So we'll go to it now.

 

Jonathan Adler:  Hi. This is Jonathan Adler at Case Western. I had a question about the Navigable Waters Protection Rule, both from the standpoint of the lawfulness of the rule and defending it in court. Navigable waters are defined as waters of the united states, and from a textual standpoint, that would seem to include by definition those waters that are in or of more than one state.

 

      Yet, the rule both as proposed and finalized did not include interstate waters as definitionally jurisdictional waters. And I'm curious about the rationale from that, both from a legal standpoint, because it seems to be that from the text of the statute, those are the sorts of waters that are easiest to include, from a constitutional standpoint, those are among the waters that would be easiest to include within the scope of the commerce power, and then from the standpoint of what states are capable of handling on their own.

 

      It seems that definitionally, when you have water bodies that cross statelines, you have the makings of the sort of collective action problems that make individual states incapable of addressing water quality or water protection issues. Whereas for in trust state waters, no matter how large or potentially navigable they might be, individual states are in a far better position to act unilaterally of the protection and maintenance of those waters.

 

      So I'd be curious for some thoughts on that.

 

Jeffrey H. Wood:  Yeah. Thank you, Professor Adler. So how about that, Dave? Interstate waters?

 

David P. Ross:  Yeah. Hey, and this was -- thanks for the question. It's a good one. And you actually answered the question through the exercise of the commerce power. Congress has the authority to regulate extremely broadly under the commerce clause. But the question, particularly whenever you use the phrase navigable waters, whether or not -- and that is a term of art in Rivers and Harbors Act, Clean Water Act, and in a variety of programs. And it has a different meaning under every different statute or program it comes up.

 

      And so here, and the answer was provided to us in a Supreme Court case law. There's nothing in the Clean Water Act that say Congress intended to exercise the full extent of its commerce power. It was still tethered to regulating interstate commerce over the waters.

 

      And so at the end of the day, if you have a truly interstate water, think an ephemeral drainage from North to South Dakota, just because it crosses a state line but it doesn't actually connect to what would consider be a truly navigable water, a navigable in fact water, which is the foundational principal that the Clean Water Act and what the Supreme Court case law is based on, if it doesn't connect, just because it crosses a state line, doesn't mean it has impact on commerce.

 

And so we spent quite a bit of time both in the preamble and then the response to comment document addressing that. Reflexively, people like to think just -- it crosses a state line, therefore it must be interstate commerce. But you still have to come back to the bedrock principle upon which we had to operate.

 

      And so as we looked at it, both in the context of the structure and the history of the Clean Water Act but more importantly, the decisions in Riverside Bayview and SWANCC and Rapanos, we got guidance and sufficient guidance. And quite frankly, that issue was litigated already as part of the 2015 rule. And one of the court decisions at the district court level that remanded the 2015 rule back to us is that we had unlawfully regulated all interstate waters de facto without thinking about its connection to interstate commerce.

 

      So it's one that wasn't -- people, I think, were wondering why I went after it. But I was trying to make sure that we had a common legal framework that applied to every single one of our regulated waters and our exclusions. So we have consistent legal theory that runs throughout the WOTUS rule or the Navigable Waters Protection Rule, which is something that we haven't had in the past.

 

Jeffrey H. Wood:  Thanks, Dave. That was interesting. It reminded me of Judge Sentelle's opinion over a decade ago in a case where he was talking about the commerce clause and said if we had some egg, we could fix some ham and eggs. We had some eggs -- neither ham nor eggs, the chances of fixing a recognizable meal requiring both none to nil.

 

      In other words, you've got to have both eggs and ham. You've got to have interstate and commerce, if I read your answer correctly to that but certainly, a question that will continue to be discussed and litigated I'm sure.

 

      Nick, any other questions out there?

 

Nick Marr:  Thanks, Jeff. We don't have any right now in the queue, so I'll send it back to you.

 

Jeffrey H. Wood:  Yeah. So one of the things that I've heard a lot about, Dave, is it's obviously just the COVID pandemic and how it may be affecting agency operations. Certainly seeing an uptick in the number of cases and I know that EPA's COVID enforcement policy has expired, but there are still ongoing impacts to operations related to COVID. So curious, within the Office of Water, are there delays or impacts to permitting, licensing, regulatory actions, stepping apart from just typical end of the year issues, things that are directly related to COVID, or are things pretty much back to operating as normal?

 

David P. Ross:  Yeah. It's -- that's a -- thanks for asking that question, Jeff. So the Office of Water, there are 16 critical lifeline sectors in this country. The Office of Water -- and several of them are housed in Department of Homeland Security and a few other like our dams are in different agencies. But EPA and the Office of Water has the water wastewater critical lifeline sector.

 

      And so in times of national emergency, we have a huge amount of work that comes up. Usually, you think hurricane response center but keeping our drinking water flowing, making sure it's safe, thinking about the supply chain for chemicals that are used for drinking water facilities, making sure that we have the human capital resources to operate our wastewater plants.

 

      Those are all issues that we are paying attention to pretty early on, and as the pandemic really started to take hold, the amount of work in the Office of Water pivoted pretty aggressively, just like our chemicals program was focused on disinfectants and new disinfectants and authorizing other chemicals program. We had a huge amount of work that kicked in behind the scenes, supporting our state and local partners.

 

      And so from a workflow standpoint, we're still processing the permitting. We've provided the flexibilities under the enforcement memo early on just as people were worried about human resource, human capital, whether or not you're going through permitting, where you don't have people that can go out and do the monitoring because they're in isolation. Those concerns came up and were part of the reason we did the temporary enforcement memo.

 

      But from a water sector standpoint, the work -- our focus was making sure that we have safe drinking water and then once you're done using it, a way to process that through our wastewater treatment plants and back into surface waters and protect our environment.

 

      And so we did actually have to stop and slow down a significant amount, particularly on the regulatory side. Had a couple rulemakings I would have loved to finish, and I had to slow them down and focus our assets on pandemic response, which was the right thing to do. But the amount of work that it takes to actually respond as an agency level, we're working on national wastewater surveillance network with our friends over at CDC, ensuring that we can get an early detection on COVID outbreaks through the wastewater treatment.

 

You know, you can take samples of the wastewater probably four or five days before you have a community level event. You can see it in the wastewater before the public health officials may know about it. So that type of work is really, really critical, and we've been spending a lot of time this year on it.

 

I have thought from a permit processing standpoint, workflow standpoint, I am absolutely thrilled at the productivity of our team across the Office of Water. The transition to a virtual environment, it took some doing, but once we were up and running, the mission of the Office of Water, Park Check, and Public Health & Environment is really robust.

 

In fact, I think the amount of product that we have going across my desk now has accelerated because we have less meetings, less of a watercooler conversation, less meetings, and more product being developed. So our mission -- I think we've accelerated our work in the way we process.

 

And things like permitting, our MPDS backlogs are down. Our UFC permitting backlogs are down, our water quality standard approvals are up. Our total maximum daily load approvals are up. And so, we're better government, more efficient government, even in the face of the pandemic. And I'm extremely proud of our team for doing that.

 

Jeffrey H. Wood:  Nick, any other questions pending?

 

Nick Marr:  Not yet.

 

Jeffrey H. Wood:  Okay. Well, we just have a few minutes left. Dave, just want to thank you again for taking time out of your schedule to join us for this Teleforum. Let me end with just one final question. I'll make it as broad as I can.

 

      But you spoke during your remarks about your -- I think you called it the emotional connection to water that we all have. And it certainly is pivotal to daily life for every American and everyone around the world. And over the course of your career, you've obviously made it a centerpiece of the work you've dedicated yourself to.

 

      You also have the constitutional obligation that you know of and have operated under to take care, to faithfully execute the laws that are entrusted to you. And so as you reflect back on the last several years of serving as the head of the water program for the federal government, what are some key thoughts you have, some things you think as a nation we're doing really well, and those things that you think as a nation we need to continue to keep the eye on the ball and do even better?

 

David P. Ross:  Hey, thanks, Jeff. Well, one, first and foremost, this is an absolute bucket list job for me. I love it. It's harder than I thought. It's bigger than I thought, but it's definitely as rewarding as I had hoped.

 

The emotional connection to water, we all go into -- if you work in an environmental space, you go into environmental world because you enjoy the environment. You enjoy being out and recreating on it. Water is, like I said, from the emotional connection, it is a really hard area to work with in a policy-law-science basis.

 

Because of the emotional connection, for some people, it amounts to a form of religion. And you start to develop decision-making as a regulator that occasionally, the ends justify the means. And from a mission outcome standpoint, I get it. It's how do we accomplish our objective? We all share the same objective, safe water to drink, clean water to recreate and for our species to enjoy.

 

But we sometimes disagree on how to accomplish those objectives. And so as a lawyer, I think it was a bit easier for me to come in and understand what I want to do versus what I can do versus what I should do are all three different things. And you always have to keep that in the back of your mind and balancing that rule of law component.

 

At base, I always come back and ask my teams what does the statute say? What does our regulations say? What are the limits of our jurisdiction? Because that's a touchstone for us that we can't accelerate beyond the lines of our authority. So it's that careful balancing has been, quite frankly, challenging. We've had some spirited, emotional discussions throughout my tenure here. Always aiming at the same objective, but how do you accomplish that objective? And sometimes, it's difficult. But it's been richly rewarding as a result. We've had amazing talent inside this building and great advocates.

 

Where I think the nation needs to keep an eye on the ball is infrastructure spending. When we do infrastructure bills in this country, you always think about roads. You think about transportation. It is high time we think about water infrastructure. And we do, we spend a lot of money on it.

 

But it is our responsibility, in order to protect the public health and the environment, we need hard infrastructure that can do that, whether that's delivering water safely or efficiently or reducing system losses or making sure the technology exists to treat all the things that we need to treat in our drinking water and our wastewater plants. We need to be thinking about infrastructure spent.

 

And we also need to be thinking about the people who run those systems. And if we don't think about hard infrastructure and human capital, the number one -- I'm biased, but the most significant enhancement we've had to public health and the environment has been our wastewater treatment plants and our drinking water plants over the last several decades. Getting that hard infrastructure in place protects our environment, protects our public health. And at the base, we have to always remember that.

 

That's where I think we as the agency, Congress, the private sector, the public sector needs to be focused on infrastructure. And for the economy, for the jobs, all those great reasons but it's also critical to our mission. So that's why I've spent so much time thinking about my work force initiative water reuse, the infrastructure financing, and the Water Subcabinet because those are like what does the life look like 20, 25, 30 years from now?

 

In government, sometimes, you think about the next budget cycle or the next decision, and you never get past six months to a year. I've always tried to keep my eye on what does life look like 20, 30 years from now? Because that ultimately, if I fell asleep at the wheel on those issues, some of those issues you can't solve if you wake up 20 years from now and you haven't solved them yet. So that's where the world needs to go in our space.

 

Jeffrey H. Wood:  Well, thanks for that, Assistant Administrator Ross. Thank you for taking time today to join us on this discussion about the Clean Water Act and the rule of law. Certainly, a lot to discuss and appreciate your time and service in our government and hope all the best for you as you wrap up this year. Happy holidays and Merry Christmas to everybody on the call, and we'll look forward to future Teleforums as well. So everyone, have a great afternoon.

 

David P. Ross:  Thanks, Jeff. I appreciate it.

 

Nick Marr:  I'll just chip in here with a quick closing and a thanks on behalf of The Federalist Society to both of you for the benefit of your valuable time and expertise today. To the audience, of course, thank you for calling in. Keep an eye on our website and your emails for announcements about upcoming Teleforum calls.

 

We've got one this afternoon at 2:30 pm. We'll be reviewing the decision in the Roman Catholic Diocese of Brooklyn v. Cuomo decision handed down a couple weeks ago. So tune in for that at 2:30 pm. Thank you all for joining us today. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.