New water rule isn't the end of the story

By Joshua A. Bloom and Tom Boer

It appears that Godot has finally made an appearance. The U.S. Environmental Protection
Agency and U.S. Army Corps of Engineers released their final rule, years in the making,
defining "waters of the United States" under the Clean Water Act. That regulation,
which was finalized on May 27 but has yet to be published in the Federal Register,
garnered over 1 million public comments, and follows a decade-long effort by the EPA
and the Corps to revise the "waters of the United States" definition after U.S. Supreme
Court rulings significantly reined in what had been the government's exercise of broad
jurisdiction under the Clean Water Act.

The new rule substantially updates the methodology the U.S. will use to determine
whether it has jurisdiction over waters of the United States (including wetlands).
Of significant concern on the part of the regulated community is that the new rule
is expected to extend the geographic extent of the government's claim of jurisdiction
under the Clean Water Act.

The final rule is the byproduct of a trilogy of Supreme Court Clean Water Act jurisdiction
cases. As evidenced by those cases, the court has over time significantly narrowed
the scope of federal authority. In United States v. Riverside Bayview Homes, 474 U.S. 121 (1985), and consistent with most lower court decisions up to that time
that had broadly interpreted Clean Water Act jurisdiction, the court issued an unanimous
opinion deferring to the Corps' ecological judgment and upholding the inclusion of
certain adjacent wetlands in the regulatory definition of "waters of the United States."

However, in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), 531 U.S. 159 (2001), the court took a sharp turn and, in a 5-4 ruling, struck down
the government's interpretation that, on the basis of the commerce clause, federal
jurisdiction extended to non-navigable intrastate ponds that supported migratory bird
populations.

Finally, in Rapanos v. United States, 547 U.S. 715 (2006), an ideologically fragmented 4-4-1 court addressed the extent
of permissible CWA jurisdiction over waters that are not navigable in a traditional
sense. Whereas Justice Antonin Scalia's plurality opinion in Rapanos looked primarily to a dictionary definition of "navigable waters" and held that federal
jurisdiction could extend over non-navigable waters only if they exhibit a relatively
permanent flow or, in the case of wetlands, where there is a continuous surface water
connection between the wetland and a relatively permanent waterbody, the dissent authored
by Justice John Paul Stevens took a much broader, pre-SWANCC view of jurisdiction. It was Justice Anthony Kennedy's concurring opinion, however,
that ruled the day, and held that CWA jurisdiction extends to wetlands and non-navigable
waterbodies provided that there is a "significant nexus" to a traditionally navigable
waterway.

Of note in his concurrence in Rapanos, and critical to the EPA and the Corps' subsequent regulatory effort, was Chief Justice
John Roberts' express displeasure over the agencies' failure to undertake rulemaking
following the SWANCC decision. Roberts noted that instead of "providing guidance meriting deference under
our generous standards, the Corps chose to adhere to its essentially boundless view
of the scope of its power." The EPA and the Corps have now responded to that admonition,
but perhaps not in a way the chief justice may have envisioned.

The rule centers around Justice Kennedy's "significant nexus" concept articulated
in Rapanos. In developing the rule, the EPA enlisted its Office of Research and Development
to assess the scientific basis of "significant nexus." The office reviewed over 1,200
peer-reviewed publications, culminating in a report - "Connectivity of Streams and
Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence"
- finalized in early 2015. The EPA relied on this scientific assessment, and will
likely look to Chevron deference from the courts, to support the broad exercise of jurisdiction delineated
by the rule.

As a general matter, the core commerce clause touchstones of jurisdiction associated
with "traditional navigable waters" remain as they always have - waters that are used
or have been used in interstate or foreign commerce, interstate waters and wetlands,
territorial seas and impoundments or tributaries of those waters. However, it is the
determination of federal jurisdiction over tributaries to those waters, waters and
wetlands adjacent to those waters, and "other waters," that has been the high point
of contention, and likely will remain so. Although the EPA suggests, among other things,
that the rule better defines tributaries, provides certainty over which "nearby waters"
are jurisdictional, and "reduces the use of case-specific analysis of waters," it
is uncertain, to say the least, that the rule will provide that clarity.

Specifically, the term "adjacent" is now defined to add "neighboring" as one of its
triggers. "Neighboring" includes waters located within the riparian area or floodplain
of the traditional navigable waters or their tributaries, or waters with a shallow
subsurface hydrologic connection or confined surface connection to otherwise jurisdictional
waters. The definition of "floodplains," in turn, is quite broad and may result in
an exceedingly wide geographic reach that will factor into jurisdictional determinations.

  <p/> 
  Further, "tributary" is defined as a water physically characterized by the presence
  of a bed and banks and ordinary high water mark that contributes flow, directly or
  indirectly, to an otherwise jurisdictional water. Significantly, the rule includes
  as tributaries wetlands, lakes and ponds, even in the absence of a bed and banks or
  ordinary high water mark, if they directly or indirectly contribute flow to otherwise
  jurisdictional waters. 
  <p/> 
  In addition, even if a water or wetland does not include any of those aforementioned
  attributes, such "other waters" can still be subject to Clean Water Act jurisdiction
  on a case-specific basis if "those waters alone, or in combination with other similarly
  situated waters, including wetlands, located in the same region, have a significant
  nexus" to waters used or that had been used in interstate or foreign commerce, interstate
  waters and wetlands, territorial seas. In somewhat circular reasoning, the term "significant
  nexus" is defined as a water, including wetlands that, either alone or in combination
  with other similarly situated waters in the region (i.e., the watershed that drains
  to the nearest jurisdictional water), significantly affects the chemical, physical
  or biological integrity of the otherwise jurisdictional water. The rule goes on to
  state that "similarly situated" waters and wetlands are those that "perform similar
  functions and are located sufficiently close together or sufficiently close to a "water
  of the United States" so that they can be evaluated as a single landscape unit. Specifically,
  any "similarly situated" water within 4,000 feet of the high tide line or ordinary
  high water mark or any other jurisdictional water, or within the 100-year floodplain
  of a traditionally navigable water, will be jurisdictional. 
  <p/> 
  Ultimately, and contrary to the EPA's view, it would appear that interpreting "waters
  of the United States" under the final rule is ripe for confusion. Of even greater
  significance to the regulated community is that the geographic extent of jurisdiction
  under the Clean Water Act will likely be greatly expanded by virtue of the new rule.
  Political blowback is already in high gear in conservative quarters on Capitol Hill,
  and there assuredly will be legal challenges to the rule. Given the Supreme Court's
  interest in this issue, "waters of the United States" seems likely to land on its
  docket yet again. Perhaps the chief justice is being reminded of the old axiom, "be
  careful what you wish for." 
  <p/> 

  <p/> 
  <b>Joshua A. Bloom</b><i> and </i><b>Tom Boer </b><i>are partners in the San Francisco office of Barg Coffin Lewis & Trapp LLP. They can
     be reached, respectively, at <a style="color:#123f72;" href="mailto:<i>jab@bcltlaw.com</i>"><i>jab@bcltlaw.com</i></a> and <a style="color:#123f72;" href="mailto:<i>jtb@bcltlaw.com</i>"><i>jtb@bcltlaw.com</i></a>, or at (415) 228-5400.</i> 
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