Waters of U.S. Rule Faces Likely Challenges On Tributaries, Other Issues, Attorneys Say

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By Amena H. Saiyid

June 1 — The federal rule defining the scope of Clean Water Act jurisdiction is “an aggressive interpretation” of U.S. Supreme Court precedent that is likely to be challenged in court, according to a former Environmental Protection Agency general counsel.

“The EPA is pushing boundaries of the limits the Supreme Court set in a number of decisions,” Roger Martella Jr., who co-leads the environmental practice in the Washington office of Sidley Austin LLP, told Bloomberg BNA May 29.

Several environmental attorneys contacted by Bloomberg BNA said they expect litigation over the rule and articulated several areas that may be challenged.

The EPA and the U.S. Army Corps of Engineers announced the final clean water rule May 27, saying it will clarify which wetlands and waterways will be subject to Clean Water Act protections.

Steve Miano, attorney with Philadelphia-based Hangley Aronchick Segal Pudlin & Schiller, agreed with Martella that the agencies will be challenged on their authority to claim jurisdiction over certain waters. The courts, he said, will most likely show deference to them, as the U.S. Court of Appeals for the Fourth Circuit did recently in a case involving a corps jurisdictional determination challenged by a Virginia developer (Precon Dev. Corp. v. U.S. Army Corps of Eng'rs, 4th Cir., No. 13-2499, rehearing denied, 5/8/15).

Moreover, Martella said the EPA and the corps would most likely be challenged on how they defined tributaries in the final clean water rule, also known as the waters of the U.S. rule (RIN No. 2040–AF30).

Tributaries that have an impact on downstream waters will be considered jurisdictional under the rule. These ephemeral, intermittent and perennial tributaries must have certain characteristics—a bed, a bank and indicators of ordinary high mark, such as scouring, debris deposition—in order to be covered.

Another attorney, Thomas Jackson, with the Washington office of Baker Botts LLP, said the agencies will be challenged on extending jurisdiction over isolated waters.

Wetlands adjacent to tributaries of navigable waters will be considered jurisdictional based on their proximity to the navigable water or its tributary, the rule said. And certain isolated waters could fall under the scope of the Clean Water Act, but only after the agencies have determined their impact on the physical, chemical, or biological integrity of downstream waters on a case-by-case basis.

Challenging Definition of Tributaries 

“To me the most significant issue for both the challengers and the agencies is the definition of the tributary because the reach of the rule fundamentally depends on how the agency defends its tributary definition,” said Martella, who served as EPA chief general counsel from 2007 and 2008, and acting general counsel prior to that time.

The definition of tributaries over which the EPA has “hinged” the entire rule is inconsistent with the plurality opinion delivered by Justice Antonin Scalia in the 2006 Supreme Court ruling (Rapanos v. EPA, 547 U.S. 715, 62 ERC 1481 (2006)).

In Rapanos, the Supreme Court sidestepped the question of whether federal jurisdiction extended to wetlands separated from tributaries by artificial barriers or to wetlands next to smaller tributaries that flow into larger navigable streams, lakes, or rivers.

Scalia's plurality opinion said the reach of the Clean Water Act is restricted to wetlands that have a “continuous surface connection” to relatively permanent water bodies.

Inconsistency With Rapanos 

Jackson agreed with Martella.

“There is no question that the definition of tributaries in the final rule is inconsistent with the plurality opinion in Rapanos,” Jackson told Bloomberg BNA. “Justice Scalia was very clear that, in his view, ‘navigable waters' do not include streams with ephemeral flow.”

Martella said the agencies are relying entirely on the significant nexus test that Justice Anthony Kennedy outlined in his concurring opinion in Rapanos.

Kennedy said the corps must establish that there is a significant nexus with a jurisdictional water when it seeks to regulate wetlands based on adjacency to nonnavigable tributaries, such as ephemeral and intermittent streams.

Martella questioned whether Kennedy would even agree with the definition involving a bed, a bank, and an ordinary high mark.

“This is the most expansive interpretation of Supreme Court precedent,” he said.

Kennedy Questioned Existing Tributary Definition 

In Rapanos, Kennedy did term as broad the corps' existing definition of a tributary as one that feeds into a traditional navigable water and has an ordinary high water mark.

Instead, Kennedy recommended that the corps, through regulation, establish categories of tributaries, as the agencies have done now, that due to the volume of flow, their proximity to navigable waters, are significant enough that wetlands adjacent them perform important functions, such as trapping pollutants and mitigating floodwaters, among others.

According to the final rule, a water or wetland has significant nexus when any single function or a combination of functions performed by this water or wetland alone or together in similarly situated waters or wetlands in a region, contributes to “the physical, biological or chemical integrity” of waters.

Such functions include trapping pollutants or sediments, retaining flood waters, contributing flow, exporting organic matter and recycling nutrients. The functions also include providing lifecycle-dependent aquatic habitat for various species of wildlife.

A proponent of the agencies' rule, Jon Devine, senior water attorney with the Natural Resources Defense Council, disagreed with both Martella and Jackson, saying the courts have relied on Kennedy's significant nexus test rather than Scalia's opinion in Rapanos to define jurisdictional boundaries.

Appellates Look to Kennedy for Controlling Opinion 

At a Senate hearing on a bill to send the final rule back to the agencies for a rewrite, Vermont Law School Patrick Parenteau noted that seven federal courts of appeal have used the significant nexus test as either the controlling or the exclusive opinion in determining jurisdiction over wetlands, while two courts of appeal have used the Kennedy test or the Scalia test that looks for relatively permanent flow of water as the basis for affirming jurisdiction.

Moving beyond the definition of tributaries, Jackson, of Baker Botts LLP, said the agencies are likely to be challenged for extending jurisdiction over isolated ponds because it goes against the Supreme Court's 2001 ruling in Solid Waste Agency of N. Cook Cnty. (SWANCC) v. United States, ( 531 U.S. 159, 51 ERC 1833 (2001)).

In SWANCC, the court held that the Clean Water Act does not cover an intrastate wetland where the only jurisdictional connection is the presence of migratory birds.

Jackson pointed to Kennedy's interpretation of the 2001 ruling in his concurring opinion in Rapanos.

“The court rejected the corps assertion of jurisdiction over isolated wetlands and mudflat bearing no evident connection to navigable-in-fact waters,” wrote Kennedy.

Jackson said he questioned whether the corps and the EPA even have the authority to regulate isolated waters.

Reinstating Vacated Bird Rule

Don Parrish, senior regulatory relations director for the American Farm Bureau Federation, pointed to the function involving the aquatic habitat, and said “the EPA is attempting to reinstate the migratory bird rule” that was vacated in SWANCC.

He said the final rule requires the agencies to evaluate the significance of an isolated wetland to a downstream navigable water by considering as little as one function, which could be aquatic habitat.

Jan Goldman-Carter, senior manager attorney with the National Wildlife Federation's wetlands and water resources program, disagreed.

“The final rule does not resurrect the migratory bird rule criticized in SWANCC, and arguments that it does are disingenuous,” Goldman-Carter told Bloomberg BNA.

Even if a finding is based “strictly” on the function in question, Goldman-Carter said “this still does not run afoul of the migratory bird rule because this factor relates to the dependency of a species inhabiting traditionally navigable or interstate waters on the use of upstream wetlands/waters for basic day to day survival needs like breeding, spawning, raising young by species residing in the vicinity—NOT simply for use by migratory birds for migration purposes.”

Goldman-Carter said that the Clean Water Act and Justice Kennedy's significant nexus test “call for consideration of just these kinds of biological factors in order to maintain and restore the …biological integrity of downstream waters.”

‘Its Basic Biology.’

“This is not splitting hairs; it's basic biology,” Goldman-Carter said. She pointed to the Federal Water Quality Protection Act (S. 1140) that was the subject of a May 19 hearing before the Senate Environment and Public Works Subcommittee on Fisheries, Water and Wildlife.

The Senate bill directs the agencies to rewrite the final rule with explicit instructions, including one provision that forbids the agencies to assert jurisdiction on the basis of migratory birds, mammals and insects.

“S. 1140 completely rejects both the science and the law with respect to biological integrity,” said Goldman-Carter. She said 85 scientists signed a letter May 28 to Sens. Dan Sullivan (R-Alaska), the water subcommittee chairman, and Sheldon Whitehouse (D-R.I.), the ranking member, to oppose S. 1140 because it ignores the peer-reviewed scientific review that the agencies used to write the final rule.

According to Jackson, the definition of significant nexus doesn't jibe with the fundamental goal of the statute, which is to maintain the physical, chemical, and biological integrity of waters. The final rule, however, requires the agencies to evaluate significant nexus when activities in an isolated wetland or water contribute to “physical, chemical, or biological integrity” of downstream waters.

This choice could very well be challenged in court.

“The significant nexus test has the potential to be pretty broad, at least the way the agencies have set it up. The agencies could totally try to rely on one of the three,” Jackson said.

In Jackson's mind, the agencies have merely replaced the migratory bird rule with the significant nexus test and are using it to apply to isolated wetlands, when the test really applied to determining the jurisdiction of wetlands adjacent to non-navigable waters. He said the agencies established jurisdiction for adjacent wetlands using the peer-reviewed study that found connectivity between streams and downstream waters.

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com