Dawson colleague Larry Liebesman, who was a federal environmental litigator for 11 years at the US Justice Department, was a featured speaker at the recent Tulane University Law and Policy Summit on federal Waters of the US (WOTUS) rules. Larry discussed origins and likely impacts of recent litigation surrounding federal Waters of the US rules.
You can watch the full video of the event here (Larry’s part begins at around 4:45):
Here’s an excerpt of Larry’s discussion of the history of federal WOTUS rules:
Congress set out very broad goals in section 101(a) of the Clean Water Act (CWA) in 1972 in terms of protecting and preserving the chemical, physical and biological integrity of the nation's waters. But section 101(b )in the Act provides that nothing in the statute basically undermines the ability or the right of states to plan and preserve their water resources.
So Congress set up a tension between two sections of the Clean Water Act and this tension has resulted in agencies trying to come up with a rule that defines the limits of federal jurisdiction, where the states come in, and how they work together. It’s called cooperative federalism.
In 2006, the Supreme Court’s Rapanos opinion created a lot of confusion by handing down two conflicting interpretations of when a wetland is regulated under the CWA. Justice Scalia’s interpretation was based on surface flow to a navigable water whereas Justice Kennedy’s was based on an ecological connection to those waters (known as the “significant nexus” test).
These opinions generated a lot of reaction. Regulated industries claimed they didn’t know what to do. There was a lot of confusion and there were a lot of anecdotes of how this was affecting a broad range of interest groups around the country. As a result, EPA and the Corps of Engineers agreed to develop a rule to provide clearer guidance. That led to the Obama 2015 WOTUS rule which deferred largely to the Kennedy “significant nexus” test as the proper test that captured the true meaning and purpose of the Clean Water Act but in a way that did not do injustice to the rights of states.
Many states sued and they won a number of big decisions that were critical of the Obama rule, saying it went too far and the rulemaking record was not sufficient. So the Obama rule was enjoined in some 26 states but remains in effect in 22 states.
So again confusion reigns as the Trump Administration comes in and said it would come up with a rule that would clarify this mess. Through an executive order, it directed agencies to develop a rule that gave due deference to the Scalia test on flow.
What came out is the 2020 rule but it has a few quirks. It favors the Scalia test but tries to capture some of Justice Kennedy’s rationale excluding isolated and ephemeral waters and many headwater areas with intermittent flow. But the 2020 WOTUS rule doesn't come out with a clear definition of how much flow you need, using a rolling three-year average of rainfall which is hard to discern.
In 2021, President Biden issued an executive order promising to develop a “durable“ rule that would address the concerns of all stake holders to meet the CWA’s goals. However in August 2021, a federal court in Arizona set the Trump rule aside finding that it did not adequately protect wetlands in that state.
In December 2021, the Corps and EPA proposed a rule that in many ways favored the Obama rule’s approach but also tried to capture the Scalia approach. That proposal has generated thousands of comments. However, given this state of confusion, the Supreme Court in January agreed again to address this issue, agreeing to take the Sackett case from the Ninth Circuit Federal Court of Appeals that adopted Justice Kennedy’s “significant nexus” test.
The Court’s decision is expected in 2023 and may finally settle the longstanding quagmire over the scope and reach of Waters of the United States.
The views expressed here are those of the author and do not necessarily reflect the views of Dawson & Associates.