Roiling the Waters: Clean Water Act “Navigable Waters” Definition – Litigation and Regulatory Developments

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The Clean Water Act authorizes the Environmental Protection Agency and U.S. Army to regulate discharges to “navigable waters,” defined in the statute as “waters of the United States, including the territorial seas.” The agency regulations further defining these terms have engendered controversy and litigation for decades.

Since 2015, the agencies have modified their Navigable Waters regulations three times, and dozens of federal lawsuits have challenged the various versions. Meanwhile, the validity of these regulations have been the key issue in several enforcement cases.

On December 7, 2021, the agencies proposed yet a fourth revision in six years to the regulatory definition of Navigable Waters.

This teleforum will update listeners on the key pending cases that may have an ultimate effect on the agency regulations, and provide an overview of the proposed new regulation.

 

Featuring:

Charles Yates, attorney in Pacific Legal Foundation’s environmental practice group, where he litigates to defend private property rights and uphold the structural protections guaranteed by the Constitution’s separation of powers.

Tony Francois, who is experienced in Water and Real Property Law, Land Use and Zoning, Environmental Regulation, Natural Resources Development, Agricultural Law, and Constitutional Law. He has represented homeowners, builders, farmers and ranchers, trade associations, and water districts in administrative, civil, and criminal proceedings before state and federal administrative agencies and state and federal trial and appellate courts.

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

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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.

 

 

Guy DeSanctis:  Welcome to The Federalist Society's Webinar call. Today, December 16th, we discuss "Roiling the Waters: Clean Water Act 'Navigable Waters' Definition - Litigation and Regulatory Developments." My name is Guy DeSanctis, and I'm 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 Charles Yates, Attorney in the Pacific Legal Foundation's environmental practice group, where he litigates to defend private property rights and uphold the structural protections guaranteed by the Constitution's separation of powers. Charles is counsel for Mike and Chantell Sackett in the cert petition to the Supreme Court asking the Court to revisit the Rapanos decision.

 

      We also have with us Tony Francois, who is experienced in water and real property law, land use and zoning, environmental regulation, natural resources development, agricultural law, and constitutional law. He has represented homeowners, builders, farmers and ranchers, trade associations, and water districts in administrative, civil, and criminal proceedings before state and federal administrative agencies and state and federal trial and appellate courts.

 

      Throughout the panel, if you have any questions, please submit them to the question-and-answer feature or the chat so that our speakers will have access to them for when we get to that portion of the webinar. With that, thank you for being with us today. Tony and Charles, the floor is yours.

 

Charles Yates:  Thanks, Guy. Thanks for the introduction. I appreciate it.

 

      I'm going to provide an update and discussion of the current litigation regarding the definition of navigable waters and the scope of the federal government's regulatory authority under the Clean Water Act. My discussion will be in two parts. First, I'm going to provide the status of various cases brought again the Trump administration's Navigable Waters Protection Rule, of which there are still six cases pending in district courts around the country. Second, I'm going to discuss the pending cert petition in Sackett v. EPA, where the Supreme Court has been asked to provide some much-needed clarity and guidance regarding the scope of the federal government's authority under the Clean Water Act. What I want to do there is provide an update on the status of that cert petition and set forth the reasons why the Supreme Court should grant cert.

 

      Now, before I discuss those topics, I want to provide a short background on the general subject matter here. The Clean Water Act regulates discharge of pollutants into federally regulated so-called navigable waters. To do so, it creates a permitting regime. Now, notwithstanding the enormous burdens and severe penalties imposed by that regime, a durable regulatory definition of navigable waters, one which clearly demarcates the scope of the federal government's authority, has remained elusive for much of the Act's history. Indeed, many have remarked that in the 40 years since its passage, the Act has taken on the character of a federal land use code.

 

      So the most significant case on this subject, the federal government's regulatory authority, is Rapanos v. United States, which was decided in 2006. Now in a split decision there, a majority of the Court held that the agency's broad interpretation of navigable waters, as set forth in regulations passed in 1986, was invalid in so far as it would reach all tributaries of traditionally navigable waters and virtually all wetlands in the country.

 

      Now, writing for plurality, Justice Scalia provided a narrower interpretation of the federal government's regulatory authority. Notably, for purpose of our discussion here, his test required that there be a continuous surface water connection between wetlands and another regulated water body in order for the federal government to assert regulatory authority.

 

      Justice Kennedy, on the other hand, concurred and proposed a much broader interpretation of navigable waters. This is the so-called significant nexus test. The significant nexus test requires a case-by-case assessment for determining federal authority over any given wetland or tributary, and this sweeps significantly more land into the federal government's regulatory purview.

 

      Now, importantly, in the 15 years since Rapanos was decided, the agencies, EPA and the Army, who were tasked with implementing the statute, and lower courts have struggled mightily to apply it. Most recently, the Trump administration's 2020 Navigable Waters Protection Rule was vacated by the District of Arizona. And as Tony will discuss in a few minutes here, the Biden administration has recently announced the latest plans to attempt at defining navigable waters anew. And the Biden administration's proposed definition, which was announced a few weeks ago, will be the fourth definition since 2015. And they're at least representing, at this stage, that there will be a fifth definition which will follow sometime next year.

 

      So with that background out of the way, we'll provide an update on the status of litigation currently pending against the Trump administration's 2020 Navigable Waters Protection Rule. Now, as I'm sure many of the members of the audience are aware, that rule was based in part on Justice Scalia's plurality, and it generally narrowed the scope of the federal government's regulatory authority.

 

      Now, when the Biden administration took office, there were 14 challenges pending against the Trump rule. As things currently stand, six of those remain pending. The plaintiffs in those challenges were a diverse group. Most of the cases, or many of them, were filed by state attorney generals, environmental groups, and travel groups who argue that the rule was insufficiently protective of wetlands and other non-navigable water features. However, a number of ranching associations also have partially challenged the rule arguing that it still swept up too much land into the federal government’s regulatory dominion.

 

      Now, shortly after taking office, the Biden administration announced they had plans to either repeal or revise that definition. So the first eight months following the inauguration basically involved the Department of Justice racing against the clock to avoid merits decisions in these cases. They obviously had an institutional concern that any merits decision would constrain the new administration's discretion to recodify a broader definition.

 

      What DOJ did was they adopted a strategy of seeking voluntary remand without vacatur. Now, this is a common if mysterious form of equitable relief. It generally entails a request for the rule for an agency action to be sent back to the agencies and for a lawsuit to be dismissed without any adjudication of the merits. I say it's common in that it frequently is requested following a change in presidential administration where the new administration is unwilling to defend on the merits the policy choices of its predecessor.

 

      Now, the environmental plaintiffs in the various cases responded by requesting that the remand be accompanied by vacatur of the rule. Just a general framework there, as things currently stand, the status of the 14 cases against the Trump administration's rule can be broken down into three categories. And it's worth noting as well that there hasn't been a merits decision in any one of these cases.

 

      First, six cases remain pending, as I just mentioned. These cases are venued in New Mexico and Maryland, Colorado, and the District of Columbia, as well as two cases in the Western District of Washington. They've been stayed, and they'll likely remain stayed until the Biden administration completes its rule-making.

 

      Second category of cases. In six of the cases, the court simply granted the agency's request for remand without vacatur. These are the cases that were venued in the Northern District of New York, the District of Massachusetts and South Carolina, New Mexico, and two cases in the Northern District of California.

 

      Finally, and this is probably the most significant development, courts in Arizona and New Mexico have entered orders not only remanding the Trump administration's rule but also purporting to vacate it nationwide without adjudicating the merits of its legality.

 

      Now the first of these two vacatur orders was entered on August 30 of 2021, by the District of Arizona, and it was really the game-changer because less than a week after that order was entered on September 3, the EPA and Army Corp announced that they'd be returning to an application of the expansive 1986 regulatory definition, which is the underlying definition once the Trump rule had been vacated. Now, this announcement was made despite the likelihood that the Arizona order, which vacated the rule nationwide without any adjudication of the merits, was likely improper to the extent it committed a notice and comment rule to be rescinded without an adjudication of the merits or without the EPA's required procedures.

 

      Now, indicative of the confusion of the lower courts in interpreting Rapanos, which I touched on in my background, that Arizona order seemed to consider the 2020 rule's partial reliance on Justice Scalia's plurality opinion in Rapanos to be a substantive defect sufficient to justify complete vacatur without any adjudication of the merits. That somewhat leads into the next portion of my remarks here.

 

      So this final development has engendered significant uncertainly among the regulated public. With the new rule-making underway seeking to again broaden EPA and the Army's authority, that uncertainty is likely to only worsen. So at this juncture, there is a significant need for the Supreme Court to revisit Rapanos, provide clear guidance to the agencies as they embark on their rule-making and to the lower courts.

 

      What I'm going to do now is I'm going to discuss the Sackett's pending cert petition because this petition would provide the Supreme Court with just that opportunity, at least as it pertains to the federal government's authority over wetlands. Anyhow, the Sackett's case has been going on for a while, so I won't belabor the factual background too heavily, just very briefly.

 

      In 2007, EPA officials asserted that the Sackett's property contains wetlands that qualified as navigable waters under the regulation's standing effect. EPA asserted authority over the lot, a hold to the Sackett's home construction, and subsequently issued a compliance order threatening them with tens of thousands of dollars in daily penalties should they proceed with their project. Now, after litigating the question of judicial review with that compliance order all the way to the Supreme Court, the Sackett's returned to the district court to litigate the question of EPA's authority over their property.

 

      Now, quite significantly, for purposes of our discussion, the administrative record in the Sackett's case demonstrates that their lot has not surface water connection to any other water body. It's bounded on both ends by permanent, elevated roads. What that means in the practical outcome of that is that it's quite clearly non-jurisdictional, and the Rapanos pluralities test the wetland’s jurisdiction, which as I just discussed, requires a continuous surface water connection of the nature that cannot occur when there's an elevated, nonpermeable barrier like a road.

 

      Nevertheless, on August 16th of 2021, the Ninth Circuit rejected the Sackett's argument that the Scalia plurality governs and instead applied Justice Kennedy's broader significant nexus test. The upshot of the Ninth Circuit's decision—we’ll get into this in a minute—is that the Ninth Circuit has provided what's otherwise a fairly straightforward vehicle for the Supreme Court to revisit Rapanos to the extent it interpreted the split opinion in Rapanos.

 

      The Sacketts filed a cert petition on September 22nd. That petition was filed early with the intention that a case be heard this term, should the Supreme Court grant it. The question presented in the Sackett's cert petition is stated simply as follows, "Should Rapanos be revisited to adopt the plurality's test of wetlands jurisdiction under the Clean Water Act?" Now that cert petition has been fully briefed, and it's now being distributed for the Court's January 7th conference, so it will be conferenced very shortly here in the new year.

 

      What I want to do now is give a brief overview before wrapping up, just give a brief overview of the four main arguments of the Supreme Court granting cert in Sackett. Now, The first argument is that the agencies have consistently failed to articulate a workable and legally sound interpretation of Rapanos. Three rule-makings later, and with a fourth and fifth on the horizon, I think the audience would appreciate the somewhat self-evident nature of this claim. Just a few weeks ago, the Biden administration released the published text for a fourth rule-making, and there's no real reason to believe they're going to get it right this time.

 

      However, in opposing cert in Sackett, EPA argues that its recently announced rule-making counts as against cert. I think at this stage, EPA probably recognizes that the Court's review of this issue -- just given the litigation and regulatory history, they've probably recognized that the Court's review is probably inevitable at some point in the future, but they argue that the Court should give them yet another chance before it revisits the issue. Now, perhaps coincidently, or perhaps not, the proposed rule, which Tony will discuss shortly, was signed by Administrator Regan, and it was released to the public on the eve of EPA's opposition of cert being due at the Supreme Court.

 

      Now, Tony will discuss it further, but just for purpose of our discussion here, the proposed rule in large part returns the same broad post-Rapanos regime under which the Sackett's property was first deemed jurisdictional. So there really isn't a plausible argument that waiting for formal readoption of that regime would do anything to sharpen the dispute that's raised in the Sackett's petition. Our view is that the time is now.

 

      The second argument in favor of granting cert is that the confusion as to which jurisdictional test Rapanos establishes, combined with the great indeterminacy of Justice Kennedy's significant nexus test, which the agencies generally have relied upon, imposes extraordinary costs on Americans engaged in everyday land use. On the other hand, adoption of Justice Scalia's straight-forward and easily implementable surface water connection test would remedy many of these problems and vitiate the costs associated with the current regime.

 

      Third, it's worth noting that the lower courts are in trenched conflict over the rule that Rapanos establishes. One just needs to take a look at the patchwork that was in effect following litigation over the Obama administration's 2015 rule or even look to the confused manner in which the District of Arizona vacated the 2020 rule based on supposed substantive defects.

 

      Now finally, in favor of granting cert -- and I think the Sackett's case -- well, the Sackett's case provides an excellent vehicle for the Court to resolve the issue that we're currently discussing both in terms of its facts and its timing.

 

      As I briefly alluded to when I discussed the administrative record and the factual background here, the facts of the Sackett's case present a very clear choice between the competing jurisdictional tests. The Ninth Circuit rejected the Sackett's argument that a Scalia plurality governs and instead applied Justice Kennedy's significant nexus test. So in our cert petition, we have presented—the Sackett's have presented—a clear choice for the Court to weigh back in on the split opinion in Rapanos.

 

      Second, as to timing, the petition being filed on the eve of yet another lengthy rule-making counts as in favor of granting cert. This is especially so given EPA's historic failures in this arena. There's simply no reason to believe that EPA is going to get it right this time and interpret the term "navigable waters" in a manner that's sound under the statute and the decision in Rapanos.

 

      So I appreciate you having me on. That's most of what I have. For now, I'll just say briefly, in conclusion, given the current regulatory and litigation landscape regarding the scope of the federal government's authority on the Clean Water Act, it's really quite clear that guidance from the Supreme Court is greatly needed at this juncture. Thank you.

 

Tony Francois:  Thanks very much, Charles. I'll speak next. My name is Tony Francois. I am currently a partner with the firm of Briscoe, Ivester & Bazel in San Francisco. And until August of this year, I was a colleague of Charles at Pacific Legal Foundation and part of the litigation team for the Sacketts. The loss in the Ninth Circuit that Charles described was my work, not his.

 

      I am going to give an overview of the proposed changes to the regulatory definition of navigable waters or waters of the United States that was published by EPA and the Army earlier this month. Federal Register notice provides 60 days of notice and comment period. So those who are following this regulatory proceeding, you should be aware you have until February 7 to submit comments to EPA and the Army. And those who are familiar with the process, the EPA's docket for submission of comments is open.

 

      The conflict that Charles described between the two Rapanos opinions—the Scalia plurality and the Kennedy concurrence—has really plagued the agencies' efforts to provide a regulatory definition of navigable waters, which is the key term. From the outset, so the year after the Rapanos decision, the agencies published an initial and then a final guidance memo, called The Post-Rapanos Guidance, that does something a little interesting. It takes basically what the agencies like out of both the plurality and the concurrence and adopts them as interpreted rules for defining the scope of their authority under the Act.

 

      Under the Post-Rapanos Guidance published in 2007, the agencies claimed authority over any non-navigable water body that met the plurality test or, if it didn't meet that test, they would apply the significant nexus test under the concurrence and claim authority over it on that basis.

 

      The other thing that the Post-Rapanos Guidance did, which is an important departure from the significant nexus test that Justice Kennedy authored in his Rapanos opinion -- his significant nexus test requires the agency to demonstrate a significant impact or effect on the physical, chemical, and biological integrity of any downstream water provided by the non-navigable water body that the agency purports to regulate. So that's a conjunctive test. The agency has to show all three types of impact. The Post-Rapanos Guidance converts this into a disjunctive test under which the agencies only need to prove one of those three types of impact.

 

      And so I mention this because this approach has persisted in all of the various iterations of their effort to reduce the Rapanos opinion, or Rapanos decision, to a permanent regulation. It's two things: one, the effort to basically have it both ways under that set of opinions by the agencies, and then two, the effort to push on the fairly soft barriers of the significant nexus test in order to do more with that.

 

      So without going into the details of them, I'll give you a brief history of what the agencies did in their regulatory processes leading up to what they've done this year. So as I mentioned, there was an initial Post-Rapanos Guidance in 2007. It was finalized in 2008, and for several years, that Post-Rapanos Guidance was really the gloss on the regulations that prevented the agencies from claiming authority over the types of water bodies that they thought Rapanos had fenced them out of.

 

      The next event of the timeline -- in 2014, the Obama administration began discussing an update to that guidance memo which they then converted into a rule-making which concluded in 2015 with what's generally called the Clean Water Rule. That rule basically used the framework of the significant nexus test to claim very broad authority over water bodies of basically any size at close to a mile distance from anything that was recognizable as navigable, lakes and rivers and then the oceans.

 

      There was a lot of controversy over this rule. It fared poorly in federal court litigation over its validity. Every federal court to address the merits of it in any way ruled against it, including the Southern District of Georgia -- excuse me, the Northern District of Georgia, which vacated it -- excuse me, which held it invalid on the merits as violating Justice Kennedy's opinion in Rapanos and remanded it but without vacating it. That rule was enjoined in a number of states but was never actually vacated by the federal courts.

 

      At the outset of the Trump administration, EPA announced that it would revisit the 2015 rule in a two-step process, and this two-step process will sound familiar when we talk about the current administration's efforts. The first step was to rescind the 2020 rule and, in doing so, to reinstate the same 1986 regulations that failed to pass muster in the Rapanos case, along with the Post-Rapanos Guidance as a way of interpreting those regs in a manner that the agencies hope would be consistent with Rapanos.

 

      That occurred in 2019 in what's called the Repeal and Recodify Rule. And so the 2019 action basically reinstated the exact text of the 1986 regulations and then readopted the Post-Rapanos Guidance and a couple of other guidance memos as an effort to return to the status quo before the 2015 regulations. So, you can think of 2019 as then another starting point in this.

     

      In 2020, the agencies adopted the rule that Charles just described the litigation over, which is called the Navigable Waters Protection Rule. That rule simplified the categories of water bodies that the agencies could claim jurisdiction over and, in its early days, fared quite well in court. It survived a preliminary injunction motion in the Northern District of California. It survived a stay that was ordered in the State of Colorado by the District of Colorado but was then reversed and vacated by the Tenth Circuit and so was actually faring better than, I think, a lot of critics had expected in court. As Charles mentioned, then with the advent of the Biden administration, the EPA announced that it was going to revisit the 2020 rule.

 

      So let's talk briefly about the main things that the 2020 rule did that departed from prior agency practice and then how the new proposed rule will return, in a limited way, frankly, to prior agency practice. So if you think in terms of three categories -- there are other details, but I think these are the three main things where you see the agency now in a dynamic where, with different administrations, it's now basically toggling back and forth on these.

 

      The first is a category called interstate waters, and these are -- I mean, if you're familiar at all with what's called the Great Basin between the Sierras and the Cascades on the west and the Rockies on the east, there are a lot of water systems there that do not drain to the oceans. They drain to terminal lakes. And you've got small creeks that, when they do flow, will flow across state lines, terminal lakes that sit across state lines, and some other resources around the country that do not actually connect to anything that's connected with our navigable river system. And the 1986 regulations regulated these on the basis that they are interstate waters and solely on that basis.

 

      The 2020 regulations dropped that category. There's a lengthy legal discussion of why they did that in the preamble to the 2020 regulation. The Biden administration is now proposing to restore that category. And it's, as a practitioner, not entirely clear to me how significant a portfolio of waters this is.

 

      But some examples -- there are a couple of lakes on the California-Nevada border and the California-Oregon border that are fairly isolated but sit across the state lines. And as a result of including interstate waters as such, the EPA will or won't, depending on whether they're in or out, exercise its dredge and fill and NPDES permit authority over those water bodies. Farther east, if your prairie pothole happens to sit right on the state line between Nebraska and South Dakota, under the Biden administration's proposal, it will be regulated again where it was not under the 2020 rule.

 

      The second category are what's called other waters under the 1986 regulations. And it's kind of a catch-all provision that, in addition to regulating all traditionally navigable waters, all waterways, lakes, rivers, canal systems that have been used or could be used with some modifications to transport goods in interstate commerce, which is really the traditional basis of the Army Corps' regulation over waterways.

 

      The 1986 regulations, in addition to those, regulated a category of waters called other waters, which basically used the very broad form of commerce power authority to claim authority over any other waters that had any impact at all on interstate commerce. And this was interpreted in guidance and in statements in the Federal Register quite broadly to include, most famously, isolated water bodies that were used by migratory birds but also in the same statement water bodies that -- sources of water used to irrigate crops which crops were then sold in interstate commerce.

 

      And so, this other waters category of the 1986 regulations was a very broad catchall that implemented an interpretation by the Army and the EPA that the Clean Water Act gave them authority to the full extent, to the outer limit of Congress' commerce power. So the migratory bird rule or interpretation, which was a way of extending this other waters category to its outer limits, was challenged and found invalid in the 2002 decision in Solid Waste Agency of Northern Cook County v. Army Corp. In that decision, the Supreme Court said in a majority opinion that the Clean Water Act could not be interpreted as exercising Congressional commerce power to its outer limits.

 

      There's some discussion of why that's so in the Swank decision, and I'd encourage you to look at it if you're interested. But essentially, the holding of Swank is that the Clean Water Act does not exercise outer limits, if you will, of commerce power. The line has to be drawn somewhere closer to traditionally navigable waters.

 

      In the 2020 rule, the Trump administration basically dispensed with the category of other waters. They removed that from the regulation and replaced it -- you wouldn't even say they replaced it. Basically, the 2020 rule simplified the categories to traditionally navigable waters—lakes, ponds, and impoundments of other regulated waters, tributaries of those waters, and the territorial seas -- excuse me, the adjacent wetlands.

 

      So that leads to the final category of -- well, let me before I move on -- so the current proposal that's out for comment restores the category of other waters that's in the 1986 regulations but dropped from the 2020 regulations, but it does so in a different way. Rather than a catch-all category of waters that meets the widest possible commerce power test, the current proposal has a catch-all other waters provision in which the Rapanos tests are the way that they connect to other regulated waters. So the other waters category now consists of those water bodies which the agencies can show either have a continuous surface connection to another regulated water or, alone in combination, have a significant nexus with a downstream, regulated water.

 

      I think this is actually a fairly significant development in the agencies' stance—their interpretation of the Act that they're responsible to interpret—because the difference between outer limits commerce power and even the significant nexus test’s more closely limited type of connection is fairly significant. And so, when you see a democrat administration that's going to be more favorable to environmental protection, reducing the scope of the Act in that way, I think that's a fairly significant development.

 

      Okay. So we've got the current proposal adding back in the interstate waters category. We've got the current proposal adding back in the other waters category but in a modified way, in a more limited way.

 

      The final area I'll talk about, and then we'll open for questions, are the changes that the current proposal makes to the treatment of tributaries, the non-navigable tributaries, and adjacent wetlands. The way that the original ‘86 regulations included those was very, very broad. Tributaries included both perennial, intermittent, and even ephemeral drainage tributaries. As long as they flowed at some part of the year to downstream waters, then they were regulated under the 1986 regulations without limit.

 

      And so, the tributary part of the 1986 regulations was basically -- if you think of the traditionally navigable waters as a backbone of the agencies’ authority, the tributaries then extend that network of regulation upstream and uphill from those actually navigable rivers and lakes to very close to the top of the watershed, especially up into ephemeral drainages.

 

      And then the way that the 1986 regulations dealt with adjacent wetlands -- those are defined, adjacency, as bordering, contiguous, or neighboring. And bordering and contiguous suggest closeness to the regulated water to which they’re adjacent but neighboring, not so much. And the agency had a long history of deciding that wetlands that were hundreds or even thousands of feet away from any other water were nonetheless neighboring in the neighborhood.

 

      So both of these regulatory definitions were at issue in the Rapanos case. And despite the fact that the plurality and Justice Kennedy could not agree on what they should mean, they did both agree that the way the agencies were defining tributaries and adjacent wetlands was too broad. And so, in practice in a lot of cases since then, the treatment of tributaries and adjacent wetlands has been the rub.

 

      The way that the 2020 rule addressed this was to regulate tributaries that were perennial or intermittent. And the way it defined intermittent was that it had more than ephemeral flow, in other words, more than in direct response to precipitation. And so it expressly excluded ephemeral drainages from its definition of tributaries. And then its definition of adjacent wetlands is also fairly tight. It required wetlands to be regulated as adjacent to be basically directly alongside, if not in actual contact with, another regulated water body.

 

      This, in particular -- the two things that got the most focus from critics of the 2020 rule were that it removed dredge and fill regulation from ephemeral drainages nationwide and that it removed dredge and fill protection and regulation from wetlands that were not immediately up against other regulated waters. And the estimates have varied, but it’s probably not an exaggeration to say that this change may have affected as much as half of the nation’s wetlands.

 

      It's a pretty significant change in agency practice. It's a pretty dramatic change in the interpretation of the statute. And yet, as I said, until the Arizona decision vacating the rule, this had fared reasonably well in federal courts, who, in general, showed an inclination to afford Chevron deference to the 2020 rule and to allow it.

 

      The Biden administration's proposal restores -- so it does two things. Instead of simply saying universally all tributaries are regulated, it will regulate tributaries that are relatively permanent and continuously flowing, in the words of the Rapanos plurality, or which have significant impact on downstream waters. So that's the application of the Rapanos factors, which the post-Rapanos Guidance had done as a guidance memo, now in the text of the regulation. So probably the major thing that it does relative to the 2020 rule is restore regulatory authority over ephemeral drainages.

 

      On adjacent wetlands, it basically does the same thing then. It defines adjacent in terms of two factors, either wetlands that are in direct contact with, or have a continuous surface connection with, downstream, regulated waters or which, alone or in combination, have a significant impact on or significantly affect downstream, regulated waters. So that is then the use of the two different Rapanos tests to delimit the original 1986 regulation of all adjacent wetlands.

 

      There are a couple of important points to make about that, new definitions that are and aren't in the new proposed regulation. The first is that it says that it will regulate relatively permanent tributaries, but it does not define relatively permanent in the text of the regulation. So the preamble makes clear that they intend to reregulate at least some ephemeral drainages with this. But where the 2020 regulation had a definition of relatively permanent that made clear it was perennial or intermittent drainages only; this one removes that.

 

      And then there is a definition of significantly affect that implements a disjunctive version of the significant nexus test, so they only have to show one of the three types of impact, chemical, biological, or physical. And then there's a list of five factors that appear non-exclusive in the way the regulation is written and which are the baseline tests for whether or not either a tributary or a wetland has a significant impact on downstream, regulated waters.

 

      There are a couple of explicit exclusions from regulation that appeared in the 2020 regulation and are carried over in this proposal. Those are waste treatment systems and prior converted cropland. But there's a lengthy list of other exclusions in the 2020 rule that are not carried forward in this version, probably the most significant one being ditches. And so that's something to be aware of. So I gather by implication the older agency practice of aggressively regulating ditches as tributaries appears likely to return the way this new regulation is drafted.

 

      And that's basically what I want to say about the proposal. Again, it is open for comment until February 7th. One of the things that I think makes the timing of this regulation and the pendency of the Sackett cert petition quite important is that an ongoing question really is, may the agency pick and choose elements of both the Rapanos plurality on the one hand and the concurrence on the other hand to fashion its own rule in its regulations, both as a question of how Supreme Court precedent works.

 

      There is a body of case law on how to interpret fractured decisions that does not support picking and choosing from among the decisions. What it supports is picking one, if either of them, as the rule of law. And so this now longstanding practice of basically having it both ways, it's to its advantage by the agencies. The Sackett petition offers the Court an opportunity to replace the fractured decision in Rapanos with a majority opinion that ideally would adopt the plurality's test for wetland adjacency and get us away from this situation where the agencies are themselves acting as the Supreme Court in deciding what Supreme Court precedent will be binding.

 

      But then another interesting aspect of that is if the agency is interpreting a statute under longstanding but now controversial precedent, they are afforded Chevron deference in their interpretation of that statute. But if an agency's interpreting a rather complicated Supreme Court opinion interpreting that statute, what deference is it owned or given under Chevron or any other deference doctrine? And that's, I think, a question that -- if the Supreme Court passes on Sackett, it's going to have to deal with, well, what does it mean for an agency to interpret not the Clean Water Act but Justice Kennedy's significant nexus opinion? So I think that's an interesting question that's going to have to get resolved sooner or later.

 

      I think as a practical matter -- obviously, we represent the Sacketts, and so we hope that the Court takes the case. But the Court is, I think fairly soon, if not in this case, going to have to resolve the differences in Rapanos and replace that with a majority interpretation of adjacent wetlands simply to stop the ping-ponging that's going back and forth within the agencies and their administration of the act with change of administration.

 

      Despite the long-term expansion of the agencies' interpretation of their own power, which was its own problem prior to about six or seven years ago, what's happened over the last six or seven years with not just a new rule-making but two new rule-makings every administration, the dynamic of that is that the time it takes tends to evade review during the pendency of the administration. And then the new administration starts, and the whole process starts all over again.

 

      And so the regulated public, the environmental stakeholders, the implementers, the states, everybody's just toggled back and forth over federal rules that govern projects that don’t happen on short timeframes. And so, there's, I think, I high need for the Court to take a case. We think Sackett is obviously a great opportunity that will clarify this and simplify it.

 

      I'll conclude by noting that EPA still seems to indicate that this is not the only rule-making it's going to do on this topic. It, in turn, described a plan to do a two-step rule-making, one which would be to reinstate the 1986 regulations, and then a subsequent rule-making that would do something different and presumably broader than what they would do with a reinstatement of the 1986 regs.

 

      What they've done now is, in many ways, narrower than the 1986 regulations although broader than the 2020 regulations. They're getting some pushback from progressive members of Congress over this particular rule-making. And they've been unclear whether they are on track to do a subsequent rule-making. A lot of that may depend on how quickly they can process response to comments and publish this one.

 

      There's also a significant legal question over the regulatory baseline they're operating from and, therefore, the EPA things that they have to do. Their position at EPA is that the baseline, the status quo, is the 1986 regulations with the Rapanos Guidance as a result of their decision as Charles described to acquiesce in the District of Arizona's vacatur of the 2020 rule. It's not quite clear, though, that as a matter of the Administrative Procedures Act and the rule-making requirements that that is the baseline. And so, I think there's a lot to come on that, and it's not clear how quickly they'll be able to finalize a rule based on this notice.

 

      With that, I'll turn it back to Guy. And we've got some time for questions, and I look forward to talking about those.

 

Guy DeSanctis:  Yeah. Thank you both for your comments. We have a few questions already. The first one was from a while back, but I'm not sure who it's addressed to, but it goes, "Did the petitioners for cert file a supplemental pleading to address the argument that EPA's newly proposed rule does not detract from the necessity for granting cert?"

 

Charles Yates:  I can answer that question. So it wasn’t necessary to do so because, perhaps deliberately, perhaps not, the EPA published that -- they publicized their proposed regulation a few days before their opposition to cert was due. So they relied upon that heavily in their opposition. And since the Sacketts are entitled a reply, they were able to address that issue in their reply. And that was primarily what their reply was focused on.

 

      And one thing I'll note is that I think not only does the announcement not detract from the necessity for granting cert, I think in this case it actually increases the cert worthiness of the Sackett's case because all the proposed rule, as Tony discussed -- in large part, the proposed rule largely purports to recodify the same regime under which the Sackett's property was first deemed jurisdictional. So there really isn't any question of mootness and certainly not any question of the cert worthiness of the case. It really isn't borne out that this proposed rule-making somehow detracts from the sharpness of the issues.

 

Guy DeSanctis:  Thank you for that answer and for the question. Our next question is, "In terms of the indeterminacy vagueness of waters of the United States, how significant is the fractured nature of Rapanos? A landowner now needs to parse the arcane of the marks rule in addition to the significant nexus test and/or the either test approach. Do you think the Court will at least give us a majority opinion if they grant your petition?"

 

Tony Francois:  Yeah. I can address that. I think there's a pretty high likelihood that the current Court would be able to fashion a majority rule. So there's a couple of aspects to that. The Sackett cert petition -- so Rapanos deals both with the tributary definition and adjacent wetlands definition. The Sackett case only deals with adjacent wetlands. There's not really a tributaries issue in it. And so, the question that the Court will deal with is really, in a certain sense, kind of simplified. Should a majority of the Court adopt the plurality's definition of adjacent, which is that set for the Riverside Bayview Homes that basically shoreline wetlands may be regulated where it's difficult to say where the river or the lake ends and the wetland begins.

 

      And one of the reasons for thinking that is that it's important to look at the opinions of the various members of the Court in the County of Maui decision from last—I'm trying to remember if that was -- I think it was from 2020—which dealt with discharges to groundwater that might eventually percolate to navigable waters and whether those were regulated. So that's a separate issue, but there's an extensive treatment of the Rapanos plurality and its discussion of point-sources over the Act that I think reflects the way most members of the Court think about Rapanos.

 

      And the Rapanos concurrence—Justice Kennedy's concurrence—is not discussed at all in County of Maui. Every single opinion in County of Maui elaborates at some length on the plurality's discussion of point sources. Justice Kavanaugh, in particular, in his separate opinion in Maui, writes at length on the plurality's significant for the County of Maui decision.

 

      So that should prompt you to then go look at the way the Court itself has dealt with Rapanos. It turns out that the Rapanos plurality has been cited multiple times by the Court both in Clean Water Act cases and other cases. The concurrence has only ever been cited once in a Supreme Court decision and not in one written by Justice Kennedy. And the citation of his opinion in Rapanos immediately follows his citation of the plurality in Rapanos. And I think even though the lower courts have almost herd-like gravitated to the concurrence as the holding of Rapanos, the Supreme Court itself, unsurprisingly, thinks differently about that.

 

      In Clean Water Act cases, it relies heavily on the plurality and not the concurrence. So I think with the current makeup of the Court and actually its treatment of Rapanos over the succeeding years, there's evidence that even Justice Kennedy was not sure that his concurrence was the right answer. And there's also, I think, clear evidence that his understanding of his concurrence when he wrote it was that it would reign in a lot of agency abuse, especially the regulation of roadside ditches. And so, when you get to, for example, his discussions of the Hawkes case, he seems kind of discouraged that this is still going on.

 

      So yeah, I think that there's a majority for something like the plurality's definition of adjacent wetlands on the current Court and that this would be a great opportunity for them to take it.

 

Guy DeSanctis:  Thank you for that question and answer. We're beginning to run out of time, but I think we can still fit in one or two more questions. The next one -- this may be somewhat related. "Is the plurality Rapanos sufficiently narrow? Do you think the EPA has the authority to regulate adjacent wetlands at all? Would this be something you would like to challenge later?"

 

Tony Francois:  I'll just answer that briefly. Setting aside what anybody would do later, it's important to note carefully what the Rapanos plurality does say about adjacent wetlands, which is that it allows for the regulation of basic shoreline wetlands, not simply continuous surface connection understood broadly. There's a wetland a quarter-mile from a creek that fills and spills in February, and that spill makes it to the creek. That might be a continuous surface water connection.

 

      What the Rapanos plurality says is can't tell where the creek ends and the wetlands starts,  can't tell where the lake ends and the wetlands starts. That is the -- and they're referring particularly to the facts of Riverside Bayview Homes. And I think, essentially, what Justice Scalia is doing with that is avoiding calling into question Riverside Bayview Homes as a precedent of the Court.

 

      But reading it narrowly in its facts and on what it actually did hold instead of the broader legislative history-type statements in Riverside Bayview Homes to say that, well, we've already said you could regulate shoreline wetlands, but that's it. And I think that's what the Rapanos plurality says. And I won't speak to what I think the Court will do with it. But yeah, unless you're going to overturn Riverside Bayview Homes, the Rapanos plurality on adjacent wetlands is no broader than Riverside Bayview Homes.

 

Guy DeSanctis:  Thank you for that question and answer. Unfortunately, we're right up against the end of the time, but do either of you have any closing comments that you'd like to make? All right.

 

      On behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today. And I want to thank our audience for joining and participating. We also welcome listener feedback by email at info@fedsoc.org. As always, keep an eye on our website and your emails for announcements about upcoming Teleforum calls and virtual events. 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 www.fedsoc.org.