The New Definition of “WOTUS”: Analysis of the Trump Administration’s “Navigable Waters Protection Rule”

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society’s Environmental Law and Property Rights Practice Group, was recorded on Thursday, February 13, 2020, during a live teleforum conference call held exclusively for Federalist Society members.  

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is titled “The New Definition of ‘WOTUS’: An Analysis of the Trump Administration’s Navigable Waters Protection Rule.” My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today, we are fortunate to have with us Daren Bakst, who is a Senior Research Fellow at The Heritage Foundation. We also have Tony Francois, who is a Senior Attorney at the Pacific Legal Foundation. We also have John Paul Woodley, who is a Principal at Advantus Strategies and formerly was Assistant Secretary of the Army for Civil Works. After our speakers give their opening remarks, we will then go to an audience Q&A. Thank you all for sharing with us today. Daren, the floor is yours.

 

Daren Bakst:  Thank you, Micah. And I want to thank everyone for taking the time today to participate in today’s teleforum and those listening to this program as a podcast.   

 

      On January 23, 2020, the EPA and the Army Corps of Engineers released their widely anticipated final rule defining the term “waters of the United States,” or WOTUS. This rule that’s called the Navigable Waters Protection Rule is a replacement for the repealed Obama administration’s 2015 Clean Water Rule.

 

      And here’s the game plan for today’s program. John Paul Woodley will provide us some important background on the WOTUS issue explaining how we got to this point, then Tony Francois will explain what’s in the new rule, and after both of them present, I’ll join in briefly for a discussion of the rule, asking them some questions to help dispel some myths, provide some important context, and get their perspective on the new rule. Then, of course, we’ll have plenty of time for questions from the audience.

 

      So at this point, I’d like to turn the program over to John Paul.

 

John Paul Woodley:  Thank you, Daren. It’s a privilege to be with you both today and to join our  Federalist Society audience.

 

      The federal regulation of navigable waters and waters in general began, actually, with the Rivers and Harbors Act of 1899. And under that act, the Corps of Engineers regulated the construction and discharges into navigable waters, generally to prevent obstructions to navigation. And this is how the Corps of Engineers got itself involved in protecting aquatic resources. And we fast forward, then, to the Clean Water Act of 1972. That act allowed EPA to regulate discharges from point sources while the Corps of Engineers was designated to regulate the dredging and filling into aquatic resources.

 

      So at that time, how did the Clean Water Act describe the EPA and Corps jurisdiction? And it’s important to note that the same jurisdiction applies under the statute, the same jurisdictional definitions apply under the statute to both EPA and the Corps of Engineers. The waters of the United States was the operative term, and how they get there is the Clean Water Act first prohibits unpermitted discharge of any pollutant. And then it defines discharge as the addition of a pollutant to, quote, “navigable waters,” unquote. And this discharge of a pollutant would include the dirt that would be used to fill wetlands or streams. And navigable waters, then, was defined to mean the waters of the United States and the territorial seas.

 

      However, unhelpfully, the waters of the United States is not defined. So in 1974, the Corps of Engineers originally set its jurisdiction under the Clean Water Act to be the same as its jurisdiction under the Rivers and Harbors Act of 1899. Under that rule, it would be limited to waters navigable in fact or subject to the ebb and flow of the tide. This Corps’ limited jurisdiction was overturned by federal court in 1975, and the Corps expanded its jurisdictional rule in response to that decision to encompass all waters, the degradation or destruction of which could affect interstate commerce.

 

      Now, the Corps recodified its jurisdictional regulation in 1986 to conform at that time to EPA’s regulation for jurisdiction. But interestingly, it added in the preamble to its regulation something that became known as the migratory bird rule. And under the migratory bird rule, the Corps claimed jurisdiction over any waters which are or might be used by migratory birds. And as you can imagine, this effectively extended jurisdiction to virtually all waters of any kind in the United States.

 

      And that was when the Supreme Court began to be heard from. In 2001, the Supreme Court decided the Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, a case that has become known as the SWANCC decision by the acronym of the solid waste agency. Under that rule, the holding of the case was that Clean Water Act jurisdiction does not extend to non-navigable, isolated, or intrastate ponds. And this decision effectively eliminated the migratory bird rule.

 

      The next decision that the Supreme Court handed down on jurisdiction under the Clean Water Act was Rapanos v. United States in 2006. Rapanos was a 4-1-4 decision without a majority opinion. The plurality opinion by Justice Scalia rejected the Corps’ assertion of jurisdiction over wetland far removed from the nearest navigable water. And Justice Scalia expressed the view that waters of the United States includes relatively permanent standing or continuously flowing bodies of water connected to traditional navigable waters and wetlands with a continuous surface connection to them. Now, Justice Kennedy’s concurrence in that case was the deciding vote, and it described a significant nexus test for Clean Water Act jurisdiction. Under this test, Clean Water Act jurisdiction would extend to any water with a significant nexus to a navigable water.

 

      So in response to Rapanos, the Corps and EPA issued guidance in 2008. The Department of Justice advised us at the time that since Justice Kennedy provided the decisive vote for the judgement of the Court, his concurring opinion should be regarded as the legal standard for determining Clean Water Act jurisdiction. So the Corps and the EPA issued this guidance, attempting to implement Justice Kennedy’s significant nexus test as advised by the Department of Justice.

 

      Generally, under the guidance of 2008, perennial and intermittent tributaries of navigable waters would be jurisdictional, but ephemeral tributaries would only be jurisdictional if they demonstrated a significant nexus to navigable waters. In this regard, the definitions of these different types of tributaries or streams is pretty simple. A perennial stream is a stream that flows all the time. An intermittent stream is a stream that doesn’t flow all the time but does have a connection to ground water and flows when the water table is high enough. And an ephemeral stream is a stream that only flows in response to a rain event.

 

      The Corps and the EPA then in 2015 issued a new rule on Clean Water Act jurisdiction. Under the 2015 rule, all tributaries of navigable waters and their adjacent wetlands were made jurisdictional. A tributary was defined as any water course that exhibited a bed and bank and a high water mark, regardless of whether it was perennial, intermittent, or ephemeral. And the result of this rule was generally to render the vast majority of water features of the United States subject to Clean Water Act jurisdiction. Many believed that the 2015 rule exceeded the appropriate scope of federal jurisdiction under the Clean Water Act and the Interstate Commerce Clause of the Constitution.

 

      In 2017, shortly after taking office, President Trump issued Executive Order 13778. The executive order directed the Army and EPA to reconsider the 2015 rule and issue a revised rule, rescinding or revising it as appropriate. And it also directed the agencies to consider interpreting the term navigable waters in a manner consistent with Justice Scalia’s plurality opinion in Rapanos. In 2019, the agencies repealed the 2015 rule and recodified the previous regulation on jurisdiction as an interim measure, and that is where the matter stood prior to the promulgation of the Navigable Waters Protection Rule last month.

 

Daren Bakst:  Thank you, John Paul. Tony, can you explain to us what’s in the new rule?

 

Tony Francois:  Yes. Thanks, Daren, and thanks, John Paul, for joining this panel and also to the audience for joining us today.

 

      The new regulation that was announced in January includes four categories of water features within the overall scope of regulation of the Clean Water Act as John Paul laid out under the term navigable waters or waters of the United States. I tend to prefer using the term navigable waters. They’re more or less interchangeable in the statute. And waters of the United States, as members of the Supreme Court and many in the academy and in the lower courts have observed, is a black box term. It’s not clear what, if anything, it actually means.

 

      So here are the categories of waters that are regulated by the new rule, and I’ll quickly overview what’s changed in each of these categories from the prior regulations. So the first category is generally called traditional navigable waters. It’s sort of a shorthand for, generally speaking, the waters that the Army Corps had jurisdiction over under the Rivers and Harbors Act that John Paul started his presentation with, actually navigable rivers, lakes, streams that are used for the shipment of goods in interstate or foreign commerce.

 

      Over the years, that category has been broadened to include not just navigable water bodies that are used to ship goods and commerce, but to also include waters that may have other connections to commerce. So there’s been an ongoing debate, for example, whether or not these water bodies include smaller creeks and rivers which are only useable for recreational boating, kayaking, canoeing, white water rafting, and the like.

 

      The new rule uses the same text as the prior rule’s category for traditionally navigable waters. This also includes the territorial seas and waters subject to the ebb and flow of the tide. The preamble to the rule offers the clarification, at least in the administration’s view, that this category does not include those so-called recreational waters, that they need to have some substantial connection with the actual shipment of goods and commerce. So that’s the first category, traditional navigable waters.

 

      The second category I’ll address is one that actually is dropped out of the new rule but which had been included in prior iterations of these regulations, and that’s a category of waters called interstate waters. And this category included anything that flowed from or sat over a state line. And it’s important to recognize that many of these waters may have also been regulated under other parts of the rule, so what we’re talking about here are water bodies that would only be regulated because they sit aside a state line or flow from one state to another.

 

      So you can think of water bodies like there’s a shallow lake in northern California and northern Nevada called Honey Lake that sits on both sides of the state boundary. It does not have significant connections to any other water body, so it would have been regulated under this category under prior versions of the rule, but under this version of the rule, that category is dropped out. And so if a water body was only regulated because it sat across a state line, under the new rule, it’s no longer regulated.

 

      The next category of water bodies is impoundments, and the new rule adds a couple of additional categories, lakes and ponds. The agencies have traditionally regulated lakes, ponds, and impoundments, which would be reservoirs and bodies of water behind dams or other obstructions. The new rule specifies the regulation of lakes and ponds, but that’s not really a new category of waters that the government has previously regulated under the Clean Water Act. What is new is a limiting factor in the regulation of impoundments, lakes, and ponds is that they’re only regulated if they contribute at least some flow in a typical year to a downstream regulated water body. I’ll speak when I’m done about what the term typical year means because that’s an important qualifier to several of these categories.

 

      The next category that the new rule covers is tributaries, and as John Paul surveyed, there’s three classifications of tributaries. There’s on one end ephemeral tributaries which only flow in direct response to precipitation. On the other end of the spectrum, there are perennial tributaries which have flow all year long. And then in between them, there are intermittent tributaries which flow more often than in direct response to rain or snowfall but don’t flow year round. The prior versions of these regulations included all of those tributaries. The new one excludes ephemeral tributaries, but it continues to include intermittent tributaries as well, obviously, as perennial tributaries.

 

      And it should be emphasized that in the category of tributaries, these are almost by definition streams and small creeks that are not themselves actually navigable or they generally would be included in the traditionally navigable waters category. So one of the important things to recognize about the inclusion of intermittent tributaries in the new rule is that there’s no minimum duration of flow to be regulated, and there’s no minimum volume or type of flow to be regulated. So as long as there is some flow in a tributary that goes beyond simply immediate runoff from rainfall or snow melt, that’s a regulated tributary under the new rule.

 

      The other important change that the new rule makes from the prior versions is that the prior version of this regulation, the 2015 regulation adopted by the Obama administration, required a bed and bank for a feature to be regulated as a tributary. The new rule actually dispenses with that requirement, and so it’s not necessary that a drainage have a bed and bank to be regulated as a tributary. So there’s some question whether, at least as to intermittent tributaries, the new rule might actually encompass more water bodies than the old one did.

 

      And then the final category of waters that are regulated by the new rule, and here’s an area of fairly significant change, is what has historically been described as adjacent wetlands. So prior versions of these regulations defined adjacent wetlands very broadly, and they use the term contiguous adjoining or neighboring. And contiguous and adjoining tended to mean right next to another regulated water. But neighboring was given a pretty expansive interpretation by the agencies, and so properties that have wetlands that are quite distant from flowing water bodies or other regulated waters, nonetheless, those wetlands would be regulated under prior versions of the rule.

 

      This new regulation substantially reduces the scope of wetlands that are regulated going forward. There’s four classes of adjacent wetlands that will continue to be regulated, but first, and there’s really no change here, are wetlands that directly enjoin another regulated water body. And the Supreme Court affirmed the agencies’ authority to regulate this type of connected wetland in a case in 1985 called Riverside Bayview Homes.

 

      The next category of regulated wetlands under the new rule are wetlands that are flooded by another regulated water body during a typical year. So this is an instance where a creek or a stream would be running past an area of upland, and during flood stage would overtop the bank and flood a wetland that’s whatever distance from the tributary.

 

      And then the new regulation will also cover wetlands that are separated from another regulated water only by a natural barrier such as a berm or a dune, or an artificial barrier like a road or a dike, so long as that artificial barrier is combined with something that connects the wetland to the regulated water body. That could be a culvert, a floodgate, a pump even. So any wetlands that are actually further afield from another regulated feature will no longer be regulated by the federal government under the Clean Water Act. And I would say that this aspect of it is probably the most significant change in the scope of regulation under the new rule.

 

      And with that, Daren, I’ll hand it back to you and we can talk about some of the issues involved in this new rule.

 

Daren Bakst:  Thanks a lot, Tony and John Paul. So let me start with initial questions. One question, Tony, was about the definition of traditional navigable waters. And there was a concern that the definition might be so broad that it might exceed -- or take a very broad interpretation of what the Commerce Clause would authorize. And one of the recommendations a lot of people made was to clarify in the definition of traditional navigable waters that it would require the transport of commerce so that you wouldn’t have a situation where somebody would come from one state, go to a water in another state, and then engage in some kind of commercial activity on that new water, that that somehow wouldn’t be captured. Do you think the final rule protects against a very expansive interpretation?

 

Tony Francois:  Well, it’s a good question, Daren. And I think the answer is they tried to, but I don’t think it ultimately clarifies that. For one thing, it doesn’t change the text of the prior rule’s regulations. What the preamble does do is depart from the prior administrative interpretations of this regulatory text to say that this administration reads this provision to require pretty close to if not only water bodies that are capable of shipping goods in commerce under this provision. 

 

      So John Paul mentioned the migratory bird rule. Another aspect of the same interpretation that included the migratory bird rule was a statement that the Army and EPA would regulate any waters used to irrigate crops sold in interstate commerce. And so I think what EPA and the Army are doing with this iteration of the regulation is, while they’re leaving the text unchanged, they’re changing their administrative interpretation of that text to a narrower view of it than prior interpretations. And this implicates, for example, the Supreme Court’s decision last term in Kisor v. Wilkie and the extent to which federal courts are going to defer to agency interpretations of their own regulations.

 

      Maybe the way to sum it up is that it’s kind of a punt. They didn’t want to change the regulatory text and maybe have that fight, but they’re trying to do that through interpretation of the reg to limit that category of waters, really, to actual boat-floating commerce shipping waterways.

 

Daren Bakst:  Thanks. This is a question for either of you. One of the challenges is trying to figure out whether or not intermittent waters are covered. As I certainly read the Rapanos plurality opinion, Scalia would not have covered intermittent waters. This rule seems to -- well, it does include intermittent waters. I just wanted to get your thoughts on whether or not the concerns about coverage of intermittent waters was addressed and whether or not you think the rule is consistent with the Scalia opinion in Rapanos.

 

John Paul Woodley:  If you read the Scalia opinion, it uses a term “relatively permanent.” And Justice Scalia specifically indicates that it doesn’t necessarily have to be continuously flowing in his view, that if it’s a relatively permanent water feature that’s recognized as a stream and flows in most years, the fact that it wouldn’t flow in a particularly dry era, dry period, would not necessarily take it out of the reach of the Clean Water Act jurisdictional definition. So I think that they have made an effort to look closely at what Justice Scalia said and to be faithful to it.

 

Tony Francois:  Yeah, I would offer a contrasting view. And I would start that with the way that the plurality in Rapanos authored by Justice Scalia describes what it thinks is and isn’t regulable water under the Clean Water Act. And several times in describing the kinds of features that the agencies had been regulating at that point, the plurality speaks almost with comic derision of both ephemeral and intermittent streams. In fact, it says that it’s an oxymoron to call something intermittent, a stream, because a stream by definition is continuous. So that’s the starting point of the plurality’s analysis of this.

 

      The plurality then drops a footnote and says, “We’re not saying that you couldn’t regulate a seasonal water body that flows for some period of the year but is dry during the summer months.” That’s not the precise text of it, but that’s the gist of it. And in acknowledging that that would create a line drawing challenge, the Court said this case doesn’t present the need to draw that line. However, the bottom line for regulation of the Clean Water Act is the ordinary presence of water.

 

      And so I think, then, when you look at what the plurality means with this term relatively permanent continuously flowing streams that can be seasonal, what the minimum type of flow that has to be there for the agencies to regulate is something that’s continuous for at least a season or more, at very minimum. And I think some reasonably argue that it’s got to be flowing for at least half the year because of the statement the ordinary presence of water.

 

      So the preamble to the new rule discusses this problem. It acknowledges that there’s no minimum volume of flow or duration of flow in their new rule and simply says, “We’ve interpreted the plurality to allow regulation of flow that’s this minimal.” But there’s -- I don't know if card trick is a fair way of describing it, but that there is a sleight of hand that happens in their justification for that. What the agencies say in the preamble to this new rule is that the plurality says you may not regulate ephemeral and intermittent streams, but you may regulate seasonal streams.

 

      The agencies then say what Justice Scalia really meant by ephemeral and intermittent was only ephemeral, and what he really meant by seasonal was intermittent as they define it. And I have to say that I think it’s doubtful that it’s a fair reading of an opinion written by the godfather of textualism to say that the words he used don’t mean what he said they mean and that they mean what we would like them to mean. And based on our preferred meaning of it, we can regulate things that his opinion seems to clearly say exceed the scope of the act.

 

Daren Bakst:  The Clean Water Act makes it fairly clear that Congress envisioned states playing a primary role when it comes to addressing water pollution. And one of the criticisms of the Obama rule was that there didn’t seem to be that respect for the state role and that the federal government was encroaching on state and even local powers. Do you think this new rule — both of you — do you think this new rule addresses some of these federalism concerns and cooperative federalism that I think was envisioned by Congress?

 

John Paul Woodley:  I’m waiting for Tony to weigh in first on this one.

 

Tony Francois:  I would just say the short answer to that, and I’m sure John Paul would have thoughts on it based on his history with the agency, but I think it does because it recognizes that there’s an area of state regulation and state authority over a lot of the features that the EPA had previously been regulating. One of the key discussions in the SWANCC decision is that there’s a Commerce Clause and Tenth Amendment limit to the types of things that the federal government can regulate, absent a really clear statement from Congress that it intends an agency to get into these areas.

 

      As you get into smaller and smaller and farther afield water bodies, you’re by definition talking about almost entirely features that appear on private property and land that is mainly subject to local and state regulation. And so I think the new rule recognizes that the prior versions of this rule, especially the Obama administration version of the rule, had simply gone too far into areas that really, under the SWANCC decision and the Tenth Amendment, are the exclusive responsibility and authority of states and local governments.

 

John Paul Woodley:  Yes, I would agree with that. I think that the difference here is really one of federalism, that they have a -- that the new rule has much more respect for the prerogatives of state and local authorities. Anything that’s taken out of jurisdiction by this rule is, by definition, pretty far up the waterway, pretty far up the watershed. If you talk about the Mississippi River, it’s going to be jurisdictional no matter what you say. But if you go way up the watershed into these ephemeral and intermittent streams, I think that the structure of the Constitution suggests that the local and state authorities responding to local conditions as they appear from time to time are the appropriate place to determine what is the level of regulation and protection that these streams should receive and what is best for each community within the United States. So I think that is really the spirit that informs the new rule.

 

Daren Bakst:  Right. I think one thing that’s important for us to do is to dispel a couple of myths if we, in fact, think they’re myths. And so there are two criticisms that exist regarding this new rule. Well, there’s a lot of criticisms, but these are just two of the criticisms that exist is that -- I’ll just throw it out to both of you. One is that this new rule is going to mean that a lot of waters will now no longer be protected. And then the second criticism is that the new rule ignores the science. So I just want to get your take on those two criticisms of the new rule.

 

Tony Francois:  Well, as to the first one, I would say that other than the change in regulation of adjacent wetlands, which is itself significant, and that should not be understated, the other categories I don’t see as making significant changes. As we said, the traditional navigable waters category is the same text as it always has been. There’s a narrowed interpretation of it, but we’ll see how that proceeds if it’s challenged.

 

      The one major category that’s been removed that appeared in prior iterations of the rule is interstate waters, and the preamble makes clear that the fact that something’s interstate doesn’t meant it’s not regulated. What it simply says is if the fact that it’s interstate is the only reason it would be regulated, we’re not going to regulate it any further. And the preamble makes, I think, a pretty solid legal argument that the presence of, quote, “interstate waters” where that’s the only basis for regulation is an anomaly that isn’t borne out by the text and history of the act.

 

      The change in the scope of regulated wetlands is, I would say, dramatic. And there, the question is really will those resources be subject to state and local regulation? Now, in many states, the answer to that is yes. In my practice, I’ve represented clients and consulted with other attorneys in several states where they’re dealing specifically with state regulation of wetlands. California certainly is setting up its own wetland regulatory program to backfill what the federal government will no longer be regulating. There are parties in California that would prefer to stick with the Army Corps on dredge and fill matters than deal with the California state authorities. But Montana, Indiana, both of those states have different types of, but they have wetland protection programs.

 

      So that question is really if you agree with the proposition that those types of resources constitutionally can only be regulated by states, then, well, are states regulating those? And the answer in many cases is yes, and certainly the legislative process is available to anybody who thinks that those states don’t regulate them enough. And I’ll hand off to John Paul on the science question if he’s got comments on that.

 

John Paul Woodley:  Thanks, Tony. I’ve wanted to just mention my experience in Virginia. I was in state government in Virginia before I joined the Defense Department, and we had a jurisdictional issue there that was peculiar to the east coast, something called Tulloch ditching that I will not go into in detail, but it was a method by which people thought they could remove wetlands from federal jurisdiction and develop on them. And so when that appeared to be a threat to regulation and protection of wetlands in Virginia, the General Assembly of Virginia immediately stepped forward and implemented its own state level wetlands regulation that supplemented the jurisdiction of the Corps of Engineers. So my experience has been that it will vary state by state, but if any given state believes that the wetlands that are within its boundaries are in need of protection and it’s up to that state to determine what kind of protection they want to extend to it and to implement it on top of and supplementing the federal jurisdiction.

 

      The interesting question that also you raised having to do with the science of the matter, and that goes back to the 2015 rule. During the course of the considerations, deliberations that led up to the 2015 rule, the EPA commissioned a study and a scientific inquiry into the effects and contributions of various categories of waters and wetlands to navigable waters. The study has become known as the connectivity study, and it essentially reached the rather uncontroversial conclusion that upstream waters contribute a lot of minerals and life biological material and all kinds of things to downstream waters, and that they should be regulated on that basis.

 

      Essentially, the new rule has not denied that or it’s really undeniable conclusion but has said that that’s true. The question of federal jurisdiction is essentially a legal question, a question that is circumscribed by considerations of federalism, considerations of the limitations of the Interstate Commerce Clause. And you can’t bootstrap your jurisdiction based on a scientific determination that does not take into account the legal question of what is federal and what is not federal.

 

Micah Wallen:  We have quite a few questions lined up. As soon as you hear the prompt, you may go ahead and ask your question.

 

Caller 1:  In addressing the new rule with intermittent and ephemeral, does subsurface flows of that stream weigh into this new rule if they -- if an ephemeral actually continues as a subsurface flow, is that science or is that legal?

 

Tony Francois:  For starters, to clarify one aspect of your question, I think what you’re asking about are actual streams that go underground and continue to flow as a stream underground and reemerge downstream. And that’s actually a relatively common phenomenon, for those who aren’t familiar with it. The rule says that, in a general sense, that the fact that a stream goes underground for a period of time or may go through other features like a boulder field or a debris field does not prevent it from being jurisdictional upstream of that surface discontinuity, if you will. Over the course of the underground portion, there’s nothing to regulate. But above and below that underground reach, it will be regulated if it meets the intermittent criteria. There’s also a provision that says that -- or a clarification that says that if you have multiple reaches of a stream, one of which is only ephemeral but above and below it are intermittent, then the two intermittent reaches are regulated, but the ephemeral one is not. So there are also some rather difficult technical questions that I think will probably be dealt with in the field in different ways over how you tell whether something only flows in direct response to precipitation. Many times, that will probably be obvious, but the preamble acknowledges that that won’t always be an easy question to answer. I hope that addresses your question.

 

Micah Wallen:  All right, we’ll move on to the next.

 

Caller 2:  Thanks for this good call today. I just had a two-part interconnected question. Are there any areas under the new rule that are opening the door to litigation? If the answer is yes, where do you perceive most likely litigation to come under the new rule, and are there any threats to individual rights, property rights particularly under this new rule?

 

Tony Francois:  Well, there’s several environmental organizations that have committed to challenging this new rule in court. The rule itself has not yet been published in the Federal Register. It was announced January 23 by the agency heads. I’m informed that it’s expected to be published either in late February or early March. It would go into effect 60 days later. So one would not expect to see any litigation against it before it’s published, but then my expectation is that there’ll be groups of environmental organizations as well as blue states that will sue to challenge and attempt to preliminarily enjoin this new rule when it is published.

 

      There are always questions about individual rights and property rights as long as the government is regulating the use of -- in particular where we’re dealing with these non-navigable features, by definition the land that these water features occupy is private property unless it’s state owned or federally owned. But everywhere where these features exist on private property, the ground itself is private property.

 

      In addition, like I said earlier, I like using the term navigable waters instead of waters of the U.S. or WOTUS because it emphasizes the connection between this statue and actual boat-floating navigation. Many of the features regulated, even the ones that -- even under this version of the rule when you look at intermittent tributaries and some of the wetlands are not only not navigable but most of the year are not even water. And so I think this rule does not eliminate those sorts of conflicts, and those are likely to be played out in enforcement cases or permitting cases on a case-by-case basis.

 

John Paul Woodley:  This is John Paul. I have a view basically that this current rule, it will certainly be challenged, no question of that. It will be fully litigated over a period of years. But I think it seems to me to be less vulnerable than the 2015 rule to being overturned.

 

      And my reason for it is that if you look at the Supreme Court jurisdiction, even as murky as it is, SWANCC and Rapanos taken together, they tell us and they teach us that there is some wetland aquatic resource, wetland and stream resource that exists on the landscape that is beyond federal jurisdiction. And that any rule that purports to, whether informed by science or not, that purports to say no, that’s not so, basically all wetlands and other aquatic resources are subject to federal jurisdiction, regardless of the Commerce Clause, that anything that answers the question that way seems to me to be the wrong answer.

 

      I was saying when we were developing the 2008 guidelines that I didn’t know what the right answer was, but I could tell what the wrong answer was. And the wrong answer was that all wetlands and other aquatic resources are subject to federal jurisdiction. And the 2015 rule veered in that direction. This rule is somewhat more circumscribed, it seems to me, and therefore less subject to challenge.

 

Micah Wallen:  All right, we’ll move on to the next caller.

 

Caller 3:  Yes. I have a question for Tony. You had raised a question of Kisor being implicated, and just wondered if you could expand on that a little bit more.

 

Tony Francois:  The case I mentioned from the Supreme Court’s last term is Kisor v. Wilkie. It deals with the question of how agencies interpret their own regulations and the extent to which the parties are bound by those interpretations and ultimately, whether the federal courts are required to defer to those interpretations. And so the decision is -- that opinion is a little bit unclear in its effect. The prior case law had basically said with few exceptions, federal courts are required to defer to the way an agency interprets its own regulations.

 

      And the significance of this is, I think, high because an agency can interpret its regulations through non-binding guidance, though processes that are much easier for the agency to complete than notice and comment rulemaking under the Administrative Procedure Act. And so the kinds of regulatory disputes that ebb and flow with different administrations are frequently resolved with guidance simply because it’s easier for the agency to do that. And the prior case law, prior to Kisor, particularly a case known as Auer, said that when agencies issue a guidance that interprets their regulations, the courts are usually bound to defer to that interpretation.

 

      What Kisor says is that there’s significant limits on that deference, one of the limits being if the agency is changing its guidance from time to time, or I would argue from administration to administration, where the agency is modifying its interpretation of a regulation over time, it’s going to be less likely to get judicial deference to that interpretation. So in the question of whether or not the traditional navigable waters categories include what I’ve tried to describe as recreational waters, interstate commerce in fly fishing and canoeing and kayaking and these kinds of activities. Prior iterations of the -- not the rule, because the regulation text hasn’t changed, but prior interpretations of that have been very broad.

 

      The preamble to this new rule tightens down the way the agencies interpret that and explicitly say canoeing and kayaking is not enough to make a river or a creek that will only support that type of navigation regulated under this provision. This change in interpretation may itself be legally challenged, and it implicates this question of what’s actually the rule? Is it the text of the regulation or is it the way that the agency says it is interpreting that regulation?

 

John Paul Woodley:  Tony, in order to raise that, you’d have to find a water body that readily supports that kind of recreation that then was not a tributary of anything.

 

Tony Francois:  I think that’s correct, John. I’ve often been uncertain what the magnitude of this particular debate was because if it’s not itself a traditional navigable water but it is a tributary, then it seems like it’s going to be covered as a tributary. Where is has come up, though, in some cases because that traditional navigable waters category isn’t limited to rivers and creeks; it also includes lakes.

 

      So there are examples of roadside ponds that sit next to a lunch area at a rest stop off an interstate highway. And because the cars driving to and fro on the interstate highway are engaged in interstate travel, when they get off the interstate to eat lunch at the picnic bench next to the one acre pond that’s got no connection to anything else in the world, the agencies get to regulate that pond because of its connection to interstate commerce. And so I think that’s the type of thing that in the preamble to this rule, the agencies are saying, at least on this administration’s watch, we’re not going to be doing that going forward.

 

John Paul Woodley:  That’s right. That would take you back, thought, to the SWANCC situation where you had an isolated intrastate body of water. In that case, I think it was a quarry filled with water after it was abandoned. I don’t think you get a different rule of SWANCC if somebody says, “Wait a minute, here’s a photograph of a guy floating a kayak in SWANCC’s reservoir.”

 

Micah Wallen:  All right, we’ll now move to the next caller.

 

Caller 4:  Hi. Thanks for the discussion today. As most of the panel members likely know, nutrient runoff, primarily hydrogen and phosphorous, is a significant issue for the Chesapeake Bay, also for numerous other bodies of water throughout the U.S. And in the case of the Chesapeake Bay, one of the largest sources of nutrient pollution is farming activities in eastern Pennsylvania, particularly in the Susquehanna River Basin.

 

      EPA Chesapeake Bay Watershed Implementation Program, which covers six states plus the District of Columbia, is the program under which the EPA is managing that issue. In most cases, a significant portion of that management is delegated to the individual state environmental agencies. So in Pennsylvania, for example, relative to Department of Environmental Protection requirements, each livestock farm is required to have a nutrient management plan for dealing with livestock waste. So I’d be interested in the panel’s perspective on the extent to which these new rules that we’re discussing might impact efforts to enforce the EPA Chesapeake Bay Watershed Implementation Plan relative to farming activities.

 

John Paul Woodley:  Okay. Well, I could certainly speak to that. I was deeply involved in that whole program, but it’s been a number of years since I was. And I think that we’ll find very small impact to the Chesapeake Bay program, and one of the reasons is that the program is really driven by the states themselves. The Chesapeake Bay agreement that exists between the state governments of the Chesapeake Bay states is the primary driver. In that agreement, the states commit themselves and to one another to take steps that are necessary to protect the water quality and improve the water quality in the Chesapeake Bay.

 

      So I think that existence of federal jurisdiction to the extent that if some small portion of the federal jurisdiction over discharges should no longer apply, then I think that the states in the Chesapeake Bay region can be expected to step up very aggressively. I know that we certainly have seen that in Virginia. I would expect to see it in Pennsylvania as well. And it would not necessarily only be regulatory. Many of the programs that deal with pollution in non-point source pollution in ag arena are voluntary non-regulatory programs that have proven very effective.

 

Micah Wallen:  Caller, next question.

 

Larry Schnapf:  Hi. This is Larry Schnapf from New York Law School. I have a quick statement and a question. With respect to the science issue, I think the more succinct response is that it’s pretty clear that Congress did not intent certain water features to be regulated federally, at least, when they passed the Clean Water Act in ’72 and amended it in ’87. So I think under our constitutional framework of federalism, if the science shows that these unregulated water bodies are, in fact, impacting water quality and interfering with the goals of the Clean Water Act, the proper approach would be go back to Congress and inform Congress about the new science as opposed to just going ahead and regulating it because I think that raises delegation issues.

 

      And then my question is could you clarify a little bit more about the whole -- the reference -- you said the stream bank wasn’t mentioned in the preamble. If you can elaborate a little bit more on that statement.

 

Tony Francois:  The prior version of the regulation in defining tributaries that are regulated required that these be water features that exhibit a bed and bank, which is a fairly common term in surface hydrology, and there’s a lot of methodologies for identifying whether a drainage has a bed and a bank. The new regulation removes that requirement from the definition of a tributary, so a tributary can be regulated absent a bed and bank.

 

      The preamble explains the agencies’ thinking that in some cases, features that have a bed and a bank but only ephemeral flow could be regulated if you said a tributary is a feature with a bed and a bank. And they did not want ephemeral features regulated, even if they created a bed and a bank. I tend to think that, given the way that the preamble discusses the -- and the leeway that field staff will have to use a wide variety of methodologies to identify intermittent drainages, that not requiring a bed and bank probably results in more features being regulated as tributaries, as intermittent tributaries, than previously were.

 

Micah Wallen:  We have one more question.

 

Caller 6:  Could you comment on how the new rules affect all the vernal pools in California with fairy shrimp and vernal pools in the Appalachians with salamanders?

 

John Paul Woodley:  Well, I’d say that if the vernal pools -- I think generally by definition, they do not have any more than a -- they may have a subsurface connection to other waters, but they don’t have a direct connection to other waters so that the regulation as it pertained to pools that were habitat for an endangered or threatened species would depend upon the Endangered Species Act and not the Clean Water Act if they were found to be isolated, intrastate waters.

 

Tony Francois:  And as to California vernal pool fairy shrimp, I read the new regulation as removing most of those unless they’re directly connecting to tributaries from regulation. There’s one caveat on that, which is that vernal pool complexes, to the extent they’re connected by swales, those swales may be classifiable as tributaries which would result in the vernal pool, if it’s directly connected to a swale, remaining regulated because it’s directly connected to a tributary.

 

      And then the other point I would add is that the State of California is due to adopt in the next couple of months a pretty robust program that the state intends, and there are some questions about the details, but that the state intends to function as functionally equivalent to the Army Corps’ 404 program, dredge and fill permitting program, to protect those vernal pools and other resources that would no longer be regulated by the federal agencies under this new rule.

 

John Paul Woodley:  Yes, Tony, that’s a very important point. And my comment that I made pertains purely to federal regulation. And in Virginia, those water bodies would still be subject to state jurisdiction.

 

Daren Bakst:  I just want to thank John Paul and Tony for presenting today, and also everybody who called in.

 

Micah Wallen:  All right. Well, on behalf of The Federalist Society, I would like to thank all of our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at www.fedsoc.org/multimedia.