Congress Dips Its Toe Into Troubled Waters

On Wednesday, the House Appropriations Energy and Water Subcommittee met to mark up the Fiscal Year (FY) 2016 Energy and Water Appropriations Act. This bill funds the Army Corps of Engineers civil works program, among other things, including the Corps’ regulatory program enforcing Section 404 of the Clean Water Act.  (The subcommittee draft is available here)

Section 105 of the subcommittee draft provides that none of the funds made available in this or any other Act making available funds for Energy and Water Development in any fiscal year may be “used by the Corps of Engineers to develop, adopt, implement, administer, or enforce any change to the regulations and guidance in effect on October 1, 2012, pertaining to the definition of waters under the jurisdiction” of the Clean Water Act.

Why is the subcommittee so concerned about changes in the works for Clean Water Act jurisdiction?  It can’t be that the current regulations and guidance are so great.  The regulations have twice been found by the Supreme Court to exceed the scope of jurisdiction specified by Congress in the Act. The most recent guidance for implementing the Supreme Court decisions is as good as Ben Grumbles (Assistant Administrator for Water at EPA at the time) and I could make it, but it can’t take the place of a proper notice-and-comment regulation.

No, the problem is the proposed EPA/Corps rule on Waters of the United States (WOTUS), which is the term used to describe the waters, wetlands, and streams that are subject to federal jurisdiction under the Clean Water Act.

The WOTUS Rule is a response to the most recent Supreme Court decision on Clean Water Act jurisdiction, Rapanos v. United States. Rapanos was a split decision, with Justice Kennedy casting the deciding vote and writing a separate opinion that has been adopted as the governing law for the Corps and EPA in seeking to comply with the Supreme Court’s decision. Justice Kennedy’s opinion provides that for the Clean Water Act to apply to a wetland or stream, the wetland or stream must have a “significant nexus” with traditional navigable water.

The agencies have had considerable difficulty in applying this standard. “Significant nexus” is not a scientific term, and nobody really knows what it means. The main concern among environmental advocates has been that the standard may leave the headwaters, including intermittent and ephemeral streams, outside the coverage of the Clean Water Act, since it is difficult to characterize the impact of these small streams and washes as “significant.”

EPA and the Corps have been working for several years to produce a new rule defining Clean Water Act jurisdiction. EPA commissioned a scientific study that concluded that headwaters taken as a whole contribute significantly to the water quality of the navigable waters downstream from them. Based on this rather unsurprising finding, EPA and the Corps have proposed in the WOTUS Rule to extend Clean Water Act jurisdiction to any tributary of a navigable water, however small, including any ephemeral stream or wash that exhibits a bed and bank and ordinary high water mark. The WOTUS Rule would also extend jurisdiction to any wetland adjacent to a tributary of a navigable water. If Section 105 survives the legislative process, the Corps at least would be prohibited from further activities to advance the WOTUS Rule.

Although EPA has sometimes argued to the contrary, it is hard to avoid the conclusion that the new WOTUS Rule would be a substantial expansion of federal Clean Water Act jurisdiction as it is now understood. Along with Clean Water Act jurisdiction comes jurisdiction under the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and the National Historic Preservation Act, since granting a permit under the Clean Water Act is a “federal action” triggering application of all of these laws, among others. The potential economic impacts are enormous. The potential environmental benefits, if any, are less clear.

Assuming EPA and the Corps are allowed to proceed to promulgate the WOTUS Rule, the stage will be set for litigation. The question posed to the courts will be simple—does the new Rule exceed the scope of federal jurisdiction intended by Congress in passing the Clean Water Act? So far the courts, including especially the Supreme Court itself, have had exceptional difficulty answering this simple question.

What was Congress trying to do in tying federal Clean Water Act jurisdiction to “navigable waters?” It would have been quite easy to define Clean Water Act jurisdiction to encompass all waters of whatever nature, wherever found, within the territorial limits of the United States. But that’s not what they did. I don’t know for sure, but I will hazard a guess. My guess is that Congress felt that there are in fact constitutional limits to the jurisdiction of the federal government in regulating private activities that affect water, and Congress wanted to stay within those limits.

The new WOTUS Rule suggests that, given the interconnectedness of all waters, however small, and the potential for impacts to these tiny tributary headwaters, taken cumulatively, to have an effect on water quality in navigable streams, there really is no limit to federal jurisdiction under the Clean Water Act. If the drafters of the WOTUS Rule are right about that, is the Clean Water Act constitutional?

In ruling on previous challenges to federal Clean Water Act jurisdiction, the Supreme Court has studiously avoided examining the constitutional issue presented by limiting its analysis to a consideration of the challenged regulation’s adherence to the wording of the Clean Water Act. I wonder if the courts can continue this pattern in ruling on the validity of the WOTUS Rule.

I conclude from reading the Supreme Court decisions in this area—fragmented as they are—that the Court is trying to tell the agencies that there is, in fact, a limit to federal jurisdiction over private activities that affect water. I mean that there are water resources—even substantial resources—outside the purview of federal jurisdiction to regulate and control. Somewhere on the landscape there is a line, beyond which the federal writ does not run. Regulation and control of water resources beyond that line must be left to the individual states and communities that have no federal constitutional limits to their authority to regulate in the public interest.

This is, on one level, not a comfortable conclusion. I do not doubt that the progressive destruction of these resources would carry the potential for negative effects downstream. And, from a regulator’s point of view, an unlimited scope of jurisdiction provides clarity and eliminates the need for difficult and time-consuming “jurisdictional determinations” that are a feature of today’s Clean Water Act regulatory regime.

Many advocates for expansive federal jurisdiction in this arena would describe these resources as “unprotected.” I see a distinction between “unprotected” and “not subject to federal regulation and control.” In the 1990s, federal Clean Water Act jurisdiction over substantial wetlands resources in Virginia was threatened by a practice known as “Tulloch ditching.” I won’t go into the whole Tulloch ditching controversy in detail, but the reaction from the Virginia legislature was interesting. They passed a comprehensive wetlands protection statute to provide state protection wherever federal jurisdiction was lacking.

For me, this raises the question of whether ephemeral streams and washes really should have the same level of protection as more substantial water resources, as the new WOTUS Rule would provide. Remember, Clean Water Act jurisdiction carries with it a lot of federal baggage. Would we really get a worse environmental result if the states and localities had to determine the level of protection that ephemeral streams and washes require, informed by local conditions and sensibilities? I doubt it.

At any rate, the House Appropriations Energy and Water Subcommittee clearly has issues with the proposed WOTUS Rule, as Section 105 makes clear. The Interior, Environment, and Related Agencies Subcommittee, which has jurisdiction over the EPA appropriation, has not yet released its subcommittee markup, and the Senate has not been heard from at all. Appropriation language is a rather blunt instrument for policy making, and I have long advocated a rulemaking to provide the regulators in the field with a better tool for defining the scope of their jurisdiction, in the light of the Supreme Court decisions.

Ideally, Congress should amend the Clean Water Act to provide a clear and easily administered limit to federal jurisdiction. Developers, farmers, and land owners and managers in general simply need to know what permits are required and from whom. Regulators simply need to know where a proposed action on the land does and does not require a permit. Uncertainty, inconsistency, and fluctuating rules are the enemy of good government, and put the entire regulatory regime in disrepute.

I don’t know if this is possible. I know that it has never been tried.

© Marbury67 | Dreamstime.com - Field Ditch Photo

© Marbury67 | Dreamstime.com – Field Ditch Photo

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