More Thoughts on the New WOTUS Rule
I’ve had the opportunity to comb through the 340-page preamble to the new WOTUS rule, and here are my initial thoughts. As with my earlier summary of the reg text, this review was limited, and the critical reader should refer to the source material to draw her own conclusions. I used the search function in Adobe to look for key terms such as “significant nexus,” “economic analysis,” “interstate waters,” etc. Here’s what I found.
Interstate Waters. The agencies stuck with their conclusion that interstate waters should not be covered unless they meet the other standards set in the rule for jurisdiction. This is a stark departure from past practice and will likely be challenged since the main purpose of the CWA is to regulate waters that affect interstate commerce.
Intermittent Streams. The agencies have explained that this new WOTUS rule will simplify compliance. If you have an ephemeral stream or non-adjacent wetland on your property, that may be true. There will still be fights over whether those two categories of waters exist on someone’s property, but it likely won’t take a lot of effort to establish either in most cases. But if you have an intermittent stream, that will be much more difficult, and will likely involve a lot of case-by-case analysis and expert witness testimony. Determining whether flow is the result of only runoff, not groundwater flow and occurring only “in a typical year” and not effected by “snowpack” will take some effort. This will involve case-by-case analysis, which will be no improvement over the current and convoluted exercise required by the 2008 Guidance.
Agency conclusions. It’s interesting to search the preamble for uses of the phrase “the agencies concluded,” and then to look for justification for the conclusion. The record seems pretty thin on many of those pronouncements. See, e.g., p. 139 (the agencies have concluded that only perennial and intermittent streams are covered under Supreme Court precedent).
Significant Nexus. The rule is based entirely on the Scalia test (per the Executive Order). None of the Circuit courts interpreting Rapanos have accepted Scalia as the appropriate test for finding jurisdiction. The 11th Cir. has rejected it entirely. Almost all of the district courts have reached the same results applying the Marks test to the split decision in Rapanos to conclude that Kennedy’s significant nexus test is the proper precedent (or Kennedy plus Scalia). Because the new rule leaves out significant nexus as a basis for its jurisdictional determinations, the agencies must be counting on getting back to SCOTUS and the new 5-conservative-Justice majority to reverse the current case law, which is entirely against them. That will not happen unless President Trump is reelected.
Economic and Program analysis. One of the key features of the jurisdictional retreat in this new rule is the assumption that the states will step in to fill the void. But look at page 307 where the agencies concluded “Complete State ‘gap-filling’ could result in no change in compliance costs to the regulated community and no change in environmental benefits (that is, neither avoided costs nor forgone benefits would occur), suggesting a zero-net impact in the long-run.” Id. at 308. This statement follows a discussion of how many states lack the programs and resources to fill the gap. Interesting conclusion.
Effects of the New Rule. The discussion starting at page 300 shows that the agencies appear to have made no effort to determine how many waters would lose CWA coverage under this new rule. They admit there are no reliable maps and they didn't try to come up with any (the Obama administration did the same in the 2015 rule). But EPA did make an effort in the 2015 rule to put a number on increase in jurisdiction by looking at past non-JDs and re-analyzing them under the proposed 2015 rule. The agencies made no such effort here, so it will be interesting to see how the courts look at a major environmental rulemaking with no analysis of its likely impacts on the environment.
In sum, when the complaints start flying on this new WOTUS rule, I think the plaintiffs will have a lot of ammunition. I understand that at least one group of states and NYC are planning to challenge as well as some of the big environmental groups and possibly the PLF, which will argue that the rule is too expansive. I wouldn’t be surprised if the Tribes jump in. There will be a lot of forum shopping. The big question will be if they able to convince the district courts in which they file to issue a nationwide stay. If not, we'll have another patchwork of CWA jurisdictional around the country.