Deep Dive Episode 50 – Analyzing the New Proposed Rule Defining “Waters of the United States”

On February 14, 2019, the Environmental Protection Agency and the U.S. Army Corps of Engineers published a proposed rule defining “waters of the United States” under the Clean Water Act (CWA).  This is a critical definition because it clarifies the waters that are regulated under the CWA.

For decades, the EPA and Corps have struggled to come up with a proper definition that is both consistent with the plain language of the statute, respects the state role in addressing water pollution, and is consistent with the rule of law.  Does the new proposed rule address these concerns?  What are some of the concerns with the proposed rule?  How should the EPA and the Corps define key terms such as “tributaries” and “adjacent wetlands?”  Should a final rule include intermittent waters?


Although this transcript is largely accurate, in some cases it could be incomplete or inaccurate due to inaudible passages or transcription errors.

Operator:  On April 10th, RTP co-sponsored a great teleforum with The Federalist Society’s Environmental Law & Property Rights Practice Group which analyzed the new proposed rule defining the “Waters of the United States.” The call featured expert discussion from Deidre Duncan, who is a Partner at Hunton Andrews Kurth, and Tony Francois, a Senior Attorney for the Pacific Legal Foundation. It was moderated by Daren Bakst, who is the Senior Research Fellow in Agricultural Policy at The Heritage Foundation. We hope you enjoy it.

Daren Bakst:  I want to thank everyone for calling in today and also those listening to the podcast. So what waters can the EPA and the Corps regulate under the Clean Water Act? That’s a question that’s been hard for the agencies to answer. So under the Clean Water Act, the agencies can regulate navigable waters. And the statute explains that the term navigable waters means the waters of the United States, including the territorial seas. So, therefore, much of the focus is on defining what does waters of the United States mean? And that’s precisely the question that the EPA and Corps are trying to answer in the proposed rule that we’re going to be discussing today.

So courts don’t usually shoot down environmental regulations in large part because of the significant deference given to federal agencies. Yet, in both 2001 and 2006, the U.S. Supreme Court did just that. They shot down agency interpretations of waters of the United States. And those cases were Solid Waste Agency of Northern Cook County v. Army Corps of Engineers and Rapanos v. United States. So over the years, the agencies have taken a very expansive view of their power under the Clean Water Act. Instead of trying to stay well within what is authorized by law, the agencies have continued to interpret waters of the United States very broadly. The Obama administration’s 2015 Clean Water Rule that also sought to define waters of the United States is a prime example of this overreach.

Now, there have been some consistent problems with EPA and Corps regulations and enforcement for decades regarding waters of the U.S., and these problems, I should clarify, definitely didn’t just start with the 2015 Clean Water Rule. The agencies had tried to regulate almost every water imaginable instead of regulating the waters that are clearly within the scope of the law. They failed to respect a primary role the states are supposed to play in addressing water pollution under the Clean Water Act. They’ve also created vague and subjective definitions so that property owners don’t know how to comply, and they may even forgo activities like farming just out of fear of civil and criminal penalties. And the list of problems could go on.

There is some good news, and that’s that the new proposed rule does appear to recognize many of these past problems and looks to be a step, at least, in the right direction. There are certainly some good things in the proposed rule, but as would be expected, there are definitely some areas for improvement. And so before I forget, for those interested in providing comments on the proposed rule, the deadline for comments to the EPA and the Corps is this Monday coming up, which is April 15th.

So now I want to turn it over to Deidre and Tony who will provide us their perspective on the proposed rule. And I’m going to first turn it to Deidre. The floor is yours.

Deidre Duncan:  Well, thank you, Daren. I appreciate the opportunity to talk to folks today. And before delving into the actual language and my thoughts on some of the provisions in the proposed 2019 rule, I just wanted to emphasize a point that you made, which is really why clarity in this issue on Clean Water Act jurisdiction matters so much. And first and foremost, the public needs to understand how to comply with the Clean Water Act. Ambiguity that’s existed for many years in the Clean Water Act only increases the potential that the public can unwittingly take actions that they think are in compliance with the law, but then later, it results in enforcement by EPA and the Corps, resulting in potential civil and criminal penalties, as you said, which can include jail. So this is a serious, serious matter for the public.

The issue of the scope of jurisdiction also impacts whether you need to ask the government for a permit, and if so, what type of permit. The scope of federal jurisdiction affects the scope of many other requirements like NEPA, the Endangered Species Act, and the National Historic Preservation Act. Ambiguity on this issue on the scope of what waters are regulated often delays projects and activities, resulting in huge costs to the public. So this is an important issue, and clarity is the key.

So what exactly does the 2019 proposed rule cover? The 2019 rule identifies six categories of waters of the United States. Category (a)(1) includes the traditional navigable waters. Category (a)(2) covers tributaries, which include perennial and intermittent streams, but not ephemeral streams, and Tony will discuss more on that category in a minute. Category (a)(3), which is a new category — it covers ditches; ditches constructed in a tributary or adjacent wetlands in accordance with the rule’s new definitions of those terms and that meet the new tributary definition. Category (a)(4), which is also a new category, lakes and ponds; category (a)(5), impoundments; and category (a)(6), adjacent wetlands.

The rule also identifies categories of waters that are not waters of the United States, and those include features that were not identified in those previous categories (a) through (6), so any feature not identified in (a) through (6) should be excluded: groundwater; ephemeral features; ditches not identified in the ditch category (a)(3); prior converted cropland; artificially irrigated areas; artificial lakes and ponds; water filled depressions created in upland incidental to mining or construction; stormwater control features excavated or constructed in uplands to convey, treat, infiltrate or store stormwater runoff; waste water recycling structures constructed in uplands; and waste treatment systems.

So obviously, there’s a lot that we could discuss about all those issues and all those categories, but today I’m going to focus first on category (a)(1), the traditional navigable waters. Really, the scope of what is a traditional navigable water is of fundamental importance for this proposal because most all of the other categories are tied to their relationship with the traditional navigable waters. They’re deemed jurisdictional based upon their relationship to what is a traditional navigable water. This category includes those waters, quote, “which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including the territorial seas and waters which are subject to the ebb and flow of the tide.” So the agencies are not proposing to make changes to this existing regulatory text. The language that I read you is essentially the existing regulatory text. However, they do consolidate the territorial seas into this category.

However, there are significant concerns with this regulatory text that I think it’s important to highlight today and discuss. The preamble to the 2019 rule recognizes that an evaluation of whether a water qualifies as a TNW is rooted in the test for navigability under the Rivers and Harbors Act, articulated by the Supreme Court in the Daniel Ball v. United States and its progeny. The Daniel Ball cases and its progeny define navigable waters for Rivers and Harbors Act purposes as those that 1) are navigable in fact, and 2) together with other waters, form waterborne highways used to transport goods in interstate or foreign commerce. This test, the Daniel Ball test, was recognized by the plurality and Justice Kennedy in the Rapanos decision. They both based their jurisdictional tests on what they referred to as the traditional navigable waters and navigable waters in the traditional sense.

In recent years, though, and in particular with the publication of something called Appendix D to the 2007 Rapanos guidance, the agencies have given traditional navigable waters a broader and broader interpretation, allowing waterways that are merely used in commerce rather than used for the transportation of commercial goods in interstate commerce to be considered traditional navigable waters. So this concept of used in commerce versus transporting goods in interstate commerce is very significant. Appendix D, for example, sets forth an interpretation that traditional navigable water categories could include any water that is currently being used for recreation; for example: boat rentals, fishing trips, water skiing. These interpretations are really far afield from the traditional notion of what constitutes a navigable water in the traditional sense under the Rivers and Harbors Act.

One of the comments that a lot of folks will be making is that it’s important to return to that traditional understanding of navigability, and that the agencies should amend the proposed regulatory text to read “waters which are currently used, or were used in the past, or may be susceptible to transport interstate or foreign commerce, including the territorial seas and waters which are subject to the ebb and flow of the tide,” so replacing used in or use in with transport. In addition, the agencies should revise, or better, withdraw Appendix D. And finally, it’s important to note that just because a water is not deemed a traditional navigable water, or an (a)(1) water, does not mean that it can’t be regulated under one of the other categories such as tributaries, or lakes or ponds. It just means it’s not one of these foundational (a)(1) waters.

I’m now going to turn it over to Tony who’s going to talk about, I believe, tributaries and adjacent wetlands.

Tony Francois:  Thank you, Deidre. In talking about tributaries and adjacent wetlands, I think the starting point for thinking about these two categories is that they may be the most common way that EPA and the Army Corps, if you will, follow the water uphill from traditionally “navigable in fact” rivers and lakes, as Deidre just described, up into more remote areas, smaller water bodies, in fact, to water features that are only there, perhaps, a few weeks or months out of the year.

So I’ll start this with a quick history lesson of both the 1986 and the 2015 regulations and how they treated tributaries and adjacent wetlands to see what the changes are in the 2019 proposal. The 1986 regulations were actually pretty simple. They just included all tributaries and all adjacent wetlands. Adjacent was broadly defined as bordering, contiguous, or neighboring. And in practice, this was very much a qualitative measure, what was bordering, what was contiguous, what was neighboring. In 2006, the Supreme Court in the case Rapanos v. United States invalidated both of these categories as beyond the scope of the term navigable waters in the Clean Water Act.

The failure of the regulations in this regard was its universal or global application to all tributaries and all adjacent wetlands. And this is despite significant differences in rationale and even what they thought the proper scope of the Act is between the four-member plurality, for whom the late Justice Scalia wrote, and a concurrence authored by Justice Kennedy. Both the plurality and the concurrence agree on two things. Some non-navigable tributaries and wetlands are regulable under the Act, but not all of them. It’s this view that some but not all waters beyond the traditionally navigable waters are regulated that has been a source of a lot of difficulty since then for the regulated community, for the agencies, for the courts because you have to figure out where on this continuum from navigable in fact rivers to small, isolated ponds and whatnot the Act actually authorizes regulation.

In the years since 2006, Justice Kennedy’s rationale, which is expressed in a complex, multi-factor significant nexus test, has been adopted by the agencies and by all the circuit courts to have looked at the issue as the controlling rule for determining which tributaries and wetlands are regulated. And I should note that the agencies and some of the lower courts allow the agencies to establish authority under either the Kennedy concurrence or the Scalia plurality.

In 2015, as an effort to resolve a lot of the confusion over what was covered and what wasn’t, but I would say also in an exercise of a rather broad assertion of regulatory authority, the Obama administration adopted new regulations that replaced the 1986 regs. And the 2015 regulations attempt to use Justice Kennedy’s significant nexus test as the basis for identifying regulated waters under the Act. So in the areas of tributaries and adjacent wetlands, the 2015 regs basically work like this: all tributaries are included that contribute flow downstream, eventually, to navigable in fact waters, and have a bed and bank and an ordinary high-water mark.

And this definition allows the regulation of ephemeral drainages. And ephemeral means that it only flows in response to rainfall. An ephemeral drainage is — or ephemeral flow is basically the rainfall running off the landscape. The 2015 regulations also include intermittent drainages. And so an intermittent drainage flows for longer than merely in direct response to rainfall, but maybe as little as a week or a few days beyond direct response to rainfall. They may flow discontinuously, and they may flow maybe a few different times a year, but not continuously between those times.

On adjacent wetlands, the 2015 regulation maintained the ’86 regulation framework of bordering, continuous, or neighboring, but it added significant detail to those concepts that attempts to implement the Kennedy significant nexus test. The 2015 regs include a complex definition of neighboring that includes distance thresholds for certain types of wetlands, either 1,500 feet or 4,000 feet from other water bodies, and a series of factors that go into considering whether those water bodies are regulated or not. One of the essences of the significant nexus framework is the aggregation, a collection of wetlands within a region to determine whether that collection has the requisite nexus with downstream navigable in fact waters, even if any one of those wetlands standing alone would lack the necessary connection.

And so the 2015 regulations, I think as most people will be aware, engendered a high amount of controversy during their adoption. EPA was somewhat notoriously found to have sponsored, in what I understand to be an illegal publicity campaign soliciting through contractors, supportive public comments for their own regulation. There’s an enormous amount of litigation that ensued in the wake of those regulations and is ongoing today. And so these have been both a policy and, eventually, even a political flashpoint in the 2016 presidential election. And upon taking office in 2017, President Trump directed EPA and the Army Corps to consider a new definition of navigable waters based on the Rapanos plurality rather than the Kennedy concurrence. And so what we got in February of this year is the proposal to implement that direction.

And so let me give a quick synopsis of what the Rapanos plurality requires for tributaries and adjacent wetlands. It’s much simpler. It’s much more concrete than the concurrence. It basically goes like this: for tributaries, the Rapanos plurality would hold that only continuously flowing and relatively permanent non-navigable tributaries, which would in ordinary parlance be called a stream or river, can be regulated under the Act. And on adjacent wetlands, the plurality would hold that wetlands are only subject to the Act if they immediately abut either a navigable river or lake, or a regulated non-navigable tributary.

And in through what they mean by that, the plurality took pains to reference the Supreme Court’s prior 1985 decision in Riverside Bayview Homes, in which the court held that a wetland that directly abuts a navigable lake, in that case, in a way that it’s actually difficult to draw a line between where the lake ends and the wetland begins, that under circumstances like that, it’s reasonable for the agency to include the wetland within the larger water feature for regulatory purposes. And the Rapanos plurality, I think, the fair reading of it is that it limits regulation of wetlands to only those types, wetlands that physically and directly abut another regulated feature and do so in a way where you can’t really draw a line between one and the other.

So the EPA’s 2019 proposed rule — I would agree with Daren. It takes an important step in reforming the prior overbroad definitions of tributaries and adjacent wetlands, but there’s also some questions about whether it limits itself to just those waters included within the Rapanos plurality. So on tributaries, the 2019 proposal carefully defines tributaries as those which provide non-ephemeral flow to a downstream navigable in fact river or lake in a normal year. And normal year is the term in generally through a 30-year average, and the result of this is that it excludes ephemeral drainages and features. And that is actually a significant reform over prior definitions.

The proposal does not require perennial or even seasonal continuous flow, and so this raises a question under the Rapanos plurality’s definition of covered waters as relatively permanent and continuously flowing. So the 2019 proposal does regulate some relatively insignificant drainages that flow intermittently, which may only do so as with prior iterations of the rule, for a few days or weeks of the year beyond the ephemeral standard. So this category, this intermittently flowing but not continuously flowing streams, is a fairly large category of waters that do not seem to meet the Rapanos plurality standard of continuously flowing. And then on the wetlands side, the 2019 proposal only regulates wetlands that directly abut another regulated water or—and here again is a question whether this is actually within the scope of the Rapanos plurality—it also regulates wetlands that are not directly abutting other regulated waters but have a non-ephemeral surface flow connection with those other regulated waters.

Now, the 2019 proposal also has a very important change in it which, certainly following its logic of requiring a surface connection, states that wetlands that are separated from other regulated waters by barriers, like berms or roads or uplands, are not adjacent and therefore not regulated. And this is a reform of all prior agency regulations which say that those types of barriers do not prevent wetlands from being adjacent. So the 2019 proposal departs from the ’86 framework, the bordering, continuous, and neighboring, and replaces that kind of qualitative approach with a more quantitative, surface connection requirement, and then query whether it allows regulation of wetlands that are farther from other regulated waters than the Rapanos plurality would, which appears to require this tighter, closer connection to the other regulated waters. And then the 2019 proposal also breaks pretty definitively with the 2015 regulations by abandoning Justice Kennedy’s complex multi-factor significant nexus determination.

So that’s kind of a quick trip through how the new rule treats tributaries and adjacent wetlands, and how it differs from the 2015 regs, and where it may differ somewhat from the Rapanos plurality. And I’ll hand it back to you, Daren.

Daren Bakst:  Thanks, Tony. And I’m actually going to turn it over to Deidre to talk about ditches.

Deidra Duncan:  Yeah, and it’s really easy on ditches to talk about the prior regulations, the 1986 regulations and the 2015 regulations. None of them actually had a category of jurisdictional waters called ditches. And ironically, this administration has proposed a category of jurisdictional waters called ditches. Now, it’s not to say that the 2015 rule didn’t address ditches as jurisdictional. They put them, essentially, in the tributary definition, but here, there’s a separate tributary category and a separate ditch category. And that’s kind of significant for the first time to have one of the categories of WOTUS being considered to be ditches.

Under the proposal, ditches would be included as WOTUS if they are traditional navigable waters, which is what I talked about first, so if it meets that — if Appendix D is used, recreational use on a ditch could qualify it as a traditional navigable water. A ditch will also be jurisdictional if it’s constructed in or relocates or alters a tributary and meets the tributary definition, or the ditch was constructed in adjacent wetlands and meets the tributary definition. And again, those are the tributary definitions and adjacent wetland definitions under this new proposal. All other ditches would be excluded from the WOTUS definition. The agencies also propose to define the term ditch as, quote, “an artificial channel used to convey water,” so an artificial channel used to convey water.

So a couple points on this. First, the agencies’ proposal on what ditches are jurisdictional is very much tied to the tributary definition that Tony talked about and therefore, kind of exactly where the intermittent perennial flow concept is compared to ephemeral — I mean, there needs to be a very clear line between what it intermittent and what is ephemeral. Otherwise, ditches are going to be caught up in that potential that waters that flow infrequently may get wrapped up in the intermittent category, and therefore, ditches may also come in under that as well.

Second, the agencies really need to be providing more clarity in this rule on how to determine what is an artificial channel versus a naturally occurring surface water channel. So if something is an artificial channel, it’ll be evaluated as a ditch; if it’s a naturally occurring surface water channel, it’ll be evaluated as a tributary. And that may be obvious, but it’s not set forth in the rule. And under the framework that’s set forth, this is important because there’s really different analysis that’s performed depending upon whether a feature is artificial versus natural.

A lot of folks, as I said, have considered it pretty problematic to have ditches as a separate jurisdictional category, and so that could result in a lot more confusion and a lot more ditches being regulated. So I think removing it as a separate category would be good and dealing with it more as an exclusion. Further, because the proposed construct of whether a ditch is jurisdictional turns on whether it’s constructed in or relocates a tributary or whether it was constructed in an adjacent wetland, this is going to require landowners and regulators to consider the kind of historical conditions under which the ditch was constructed. And there are many, many, many ditches all over the United States, and then many were constructed well before the Clean Water Act, and well before tools that were in existence to help kind of identify what the historic conditions are.

So the preamble states that the burden of proof is going to be on the agencies to determine the historic status of the ditches’ construction, but I think the public needs more clarity on this point. There are some things that I think the agencies could do to specify that applicants or landowners will only be requested to provide existing documentation, that they don’t have to create or gather new information, that they can only request once something from a landowner, or not at all, but exactly what kind of evidence is going to be necessary, how long that is going to take. The agencies could state that there’s a time period for making these determinations. For example, the agency has no longer than 60 days from receipt of a request for there to be kind of information provided. But exactly how this determination gets made, the logistics of it, the evidentiary requirements of determining when a ditch was constructed and whether it was in an adjacent wetland or a tributary is somewhat problematic.

Finally, the agencies really should acknowledge that if a ditch is just ultimately determined to be excluded, either because the historical information confirms that it was not constructed under the criteria necessary or because the agencies are unable to carry their burden, the ditch remains excluded. And they can have certainty on that, and landowners aren’t going to be subjected to kind of perpetual attempts to reassert jurisdiction over that feature. Again, I think there’s a lot of implementation issues that this ditch category creates that the agencies need to work through.

Daren Bakst:  Thanks, Deidre. Before we take questions, Tony and Deidre, did either one of you want to respond to each other or have anything else to add before we take questions?

Deidre Duncan:  I don’t. I think Tony did a good job laying out the tributary and adjacent wetlands categories.

Tony Francois:  Likewise.

Daren Bakst:  All right, I’ll ask a first question here to Tony. So in Rapanos, I think Justice Scalia makes it expressly clear that he would not include intermittent waters, and he kind of lays out — he does explain, in the plurality, explain that there would be certain seasonal waters they might include. How would you recommend the agencies, the EPA and Corps, kind of — should they exclude intermittent waters, and what should they include? How should they define it?

Tony Francois:  Sure, thanks. I certainly think that if they are trying to develop a regulation that’s based on the plurality, they’re not able to. I mean, the plurality does not encompass intermittent waters. The key requirement is continuous flow and relative permanence. And in talking about that, at one point in the opinion, Justice Scalia writes that you can quibble about what precisely continuous and permanent mean on the ground, but the ordinary presence of water is really the hallmark. There’s a cordon line in there in rejecting the old tributaries version in the 1986 regs where the plurality says this results in the regulation of what’s mostly land, not water. I think to properly read the plurality, you can only regulate non-navigable tributaries if they are continuously flowing.

Now, there is a footnote in the opinion that allows for the regulation of non-navigable tributaries that may be dry during the summer. So there’s a couple of different approaches to that. You could have a number of days for which a water body has to continuously flow, and some have proposed 183 days because that’s more than half a year, and therefore — well, on the side of relatively permanent rather than not permanent. You could probably adopt some kind of variation on that that spoke in terms of seasons so that it has to flow for at least two full seasons and parts of another to be covered. But in any of them, to be within the plurality, it has to continuously flow, I think cannot be intermittent. I’m not getting the page numbers, I think, to it right now, but I think there’s actually a statement that the regulation of intermittent water bodies is not encompassed within their view.

The other thing is that there’s an important qualitative statement made in the plurality, which is that to be regulated, the non-navigable tributary has to be something that, quote, “in ordinary parlance would be called a stream or a creek.” I think that’s something that’s hard to express in the definitional provision in a regulation. But nonetheless, I think it does suggest a size threshold of some sort below which a normal person walking toward a small trickle in the woods, for example, would not tell whoever they were hiking with, “Hey, look at that creek there.” And yet, there’s no size or minimum flow threshold in the proposed rule. So as long as it provides non-ephemeral flow in a normal year, no matter how small it is, it’s regulated.

Daren Bakst:  Thanks. Wes, do we have any questions?

Wesley Hodges:  We do have one question from the audience. Let’s go ahead and go that caller.

Caller 1:  Yeah, my question does relate to the intermittent flow issue, and I’d like to describe for you — Florida has the St. Johns River that runs through a substantial portion of it. And if you’ve ever gone over Interstate 4 going to Disneyworld, you’ve crossed over the St. Johns River. And south of there, the St. Johns River peters out into a sea of grass which could not be considered by anybody to be a river, or have a bank or discernable bank, yet the Army Corps of Engineers’ position has been that back in 1870, there was an enterprising lumber person, lumberman, who was able to drag a barge over this grass using draft horses, fill it with trees, drag it back over the grass, and then deposit it into the St. Johns River, and therefore, the sea of grass was navigable waters because they were historically used and capable of being used as a means of transportation in interstate commerce.

Now, that having been the background, Rapanos, to me, seems to clearly dictate that this would no longer be navigable waters. And as I look at the regulation, I don’t see that obligation being fulfilled. It looks to me like under the regulation, despite what Rapanos says, this sea of grass will continue to be part of the waters of the United States. Do you have any thought about that? Has the regulation accomplished what Justice Scalia attempted to accomplish in Rapanos?

Deidre Duncan:  I’m not going to address necessarily whether the regulation accomplishes what Justice Scalia — I’ll leave that to Tony. But with respect to your hypothetical, or actual — to me, it’s always hard when you don’t have all the details on everything, but it does seem to me that the core — there is this issue on (a)(1) waters that talk about past use and this notion that if at one point in the past, the area in question was arguably used for transporting lumber through a barge back and forth but now that area is no longer navigable, does (a)(1) cover it? And I would say as currently proposed, I think (a)(1) would cover what you’re talking about. Do I think that’s right? Do I think there are legal arguments why that’s wrong? I think so. But I think it is one of these gray areas in this regulation and in, really, the issue at large.

The Rivers and Harbors Act talks about things being once navigable, always navigable. That’s the Rivers and Harbors Act, but the Clean Water Act is really a water quality statute and doesn’t have this notion, in general, of looking back in time as to what something was many, many years ago. Under this proposal, there are elements of that, as I kind of laid out, both in the (a)(1) concept where you have this notion of past use, and also in the ditch category where you’re talking about what was it when it was constructed, and that notion of looking back in time many years ago, I think, is potentially problematic.

Caller 1:  What I think what I hear you really saying is you don’t think the regulation complies with what the executive order requires, which is conforming the law, the regulations, to Justice Scalia’s decision in Rapanos.

Deidre Duncan:  Yeah, I’d have to go back and look at the executive order. I think it gave them some wiggle room. I —

Caller 1:  — It says, “in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos.”

Tony Francois:  So let me address that quickly. The preamble to the proposal expressly says that what they’ve tried to do with this regulation is some kind of harmonization between the Kennedy concurrence and the plurality, the Scalia plurality. I do think that they have a legal problem with approaching it that way. So Rapanos is a fractured decision, meaning there’s no majority opinion. Four Justices joined the plurality in striking down the 1986 regs on tributaries and adjacent wetlands. Justice Kennedy agrees with them, but on a very different rationale. In strict terms, there’s no holding of that opinion.

So then you turn to the Supreme Court’s opinion in Marks v. United States which provides the lower courts with some guidance on how to interpret and apply fractured decisions. And the general rule there is that you look at the opinions that support the judgements, and if one of them is a logical subset of the others, then that’s the holding. But the basic direction of Marks is that one of the opinions may be the holding, one of the opinions supporting the judgement may be the holding. With that, lower courts and executive agencies are not free to try to meld the two disparate opinions together into yet a third one that was not adopted by any member of the Court.

And so I think that there’s a legal defensibility problem for the agencies if they proceed with a regulation that is not based on one or the other. I think they’ve pretty clearly said in the preamble that they have made an effort to try to cohere the two as though they were separate Supreme Court opinions. I mean, it’s one thing to say, “We’re going to try to cohere a rule of law out of Riverside Bayview and Solid Waste Agency of Northern Cook County and Rapanos. This is what we think the distilled rule is.” And that’s what everybody has to do always. But within a single fractured decision, there’s absolutely no legal authority for the proposition that the government is then free to pick and choose among the opinions supporting the judgement which elements of each it prefers, and to form those into a third rule that no Justice ever put their name to. I think that is a significant issue that the agencies are going to have to face in finalizing this proposal.

Caller 1:  Let me just say I agree with everything that you just said. The only thing that I would graft onto that is the Chief Law Enforcement Officer of the United States, the President, has made a choice, and he has said that among all of these rationales for the decision, we choose Scalia’s and Thomas’s. And it doesn’t seem to me like the Army Corps and the EPA have followed that instruction. They’ve done what you suggested, which is try to meld together a number of different portions of the plurality opinion, and therefore, the rule doesn’t really follow the instructions of the executive order. Am I wrong?

Daren Bakst:  This is Daren. Just a couple of points. First of all, I don’t disagree with you on whether or not it’s — and I don’t think it’s consistent with the plurality in Rapanos. I mean, I think that intermittent water question, the kind of nod to that, the fact that it’s not limited to the relatively permanent waters. But I don’t believe the executive order simply directs them that they have to follow Rapanos. And the other think that I would be concerned about, and I have been concerned about, is the agencies need to be able to — they need to figure out what the Constitution and the Clean Water Act require. The executive order itself shouldn’t be directing the answer to the question. It certainly can inform and play a role, and as far as I recall, the executive order asked agencies to go back, look at the 2015 Clean Water Rule, and potentially revise it, potentially consistent with the Scalia plurality opinion. And they have, to a large extent, they have. But to a large extent, they haven’t. So I think that’s kind of where we’re at. Wes, do we have any other questions?

Wesley Hodges:  We do not have any other questions at this time. Daren, I turn the mike back to you. Do you any more questions for our panelists?

Daren Bakst:  Yeah, I do have a question for Deidra. On one of the questions regarding traditional navigable waters is the susceptible to use language. Do you have any suggestions on how susceptible to use should be addressed?

Deidre Duncan:  Yeah. I mean, I think there are cases that have, again, in the Rivers and Harbors Act because that language really is grounded in the Rivers and Harbors Act. It needs to be susceptible to use with transportation of interstate commerce with reasonable improvement. And I think that there are cases that talk about it — there needing to be actual plans. And it can’t just be that the agencies say regardless of cost, regardless of — it has to have kind of concrete plans associated with respect to its reasonable susceptibility.

So again, I think this part of the regulation to the extent it can be grounded more in the Rivers and Harbors Act kind of traditional view of what that means, it will be better than the way it is currently written, which is potentially its own language and subject to problematic interpretation by the agencies. So I think the more the agencies can clarify that this is grounded in the Rivers and Harbors Act case law, the better this is going to be to the extent it’s a new kind of open-ended Clean Water Act definition, which is what it has been kind of in the past couple of years through Appendix D. It’s morphed into being overbroad. And I do think the susceptible to use to transportation of commerce is problematic in that.

Tony Francois:  So Wes, I did have one thing I wanted to mention briefly. Your announcement of the next teleforum reminded me of this. If you’re interested in the topic that we’ve been discussing today, on May 8th at The Federalist Society’s Executive Branch Review Conference in Washington D.C., we’ll have a breakout panel on this topic that will feature Jeff Clark who’s the Assistant Attorney General for the Environment and Natural Resources Division at the Justice Department, which is for a lot of practical purposes, if you will, not perhaps the proponent of the rule, but certainly counsel to the agencies in preparing the rule. We’ll also be joined by Jon Devine who’s an attorney for the Natural Resources Defense Council, which has been very critical of the proposed rule. I’ll be on the panel, and we’ll be moderated by Professor Jonathan Adler. And so if this is of interest to you, I think that panel will also be very interesting. That’ll be May 8th.

Daren Bakst:  Thank you, Tony. Wes, any more questions?

Wesley Hodges:  We do have one more from the audience.

Daren Bakst:  Okay, good

Wesley Hodges:  Audience caller, you are up.

Caller 2:  Okay. Sorry, this might be a bit of a peculiar question or outside of the scope of the conversation, but in regards to this rule, do you think that it’s under this rule or under the Clean Air Act that fireworks detonating over intercoastal waterways that release pollutants, would that be something that you think this is regulating or that would be found under the Clean Air Act? Because I wasn’t sure if the particulates eventually finding their way into the waterway was actually something that would be defined within this as a pollutant that’s being detonated by a point source, or if you think that because of the air, it wouldn’t necessarily be the same.

Daren Bakst:  Deidre, do you have any thoughts on that?

Deidre Duncan:  Well, no. Actually, I do know that fireworks have been determined to be discharges of pollutants into waters in the past requiring permits, so that’s not — I mean, I can’t speak to the Air Act requirements. It may end up being that it has implications for both, but I’m pretty sure, and I — this has come up in the past that fireworks detonating kind of over waters can be considered point source discharges into waters.

Caller 2:  Okay, thank you.

Daren Bakst:  Well, thank you very much, Tony and Deidre and Wes.

Deidre Duncan


Hunton Andrews Kurth LLP

Tony Francois

Senior Attorney

Pacific Legal Foundation

Daren Bakst

Director of the Center for Energy and Environment and Senior Fellow

Competitive Enterprise Institute

Energy & Environment

The Federalist Society and Regulatory Transparency Project take no position on particular legal or public policy matters. All expressions of opinion are those of the speaker(s). To join the debate, please email us at [email protected].

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