The Swamp Stomp

Volume 17, Issue 15

We at the Swamp School have been keeping up with and attempting to teach the ever-changing rules related to what is a Waters of the US. Much like the waterways they regulate they twist and turn disappear and re-appear finally ending up in the sea of government regulation. Then they are left to evaporate on the whims of the courts soon condensing in yet another regulation. We will call it the Waters of the US cycle.

This all began in the late 1890’s when a concern about blocking waterways used to transport good and services was seen as a threat to the national economy. The use of structural steel to cross great rivers was now presenting problems of railroads blocking traditional water based shipping. Free trade across state lines needed to be maintained and Congress (not the President – he vetoed the Act) passed the Rivers and Harbors Act of 1899. Ever since then the Federal government has been regulating waters of the US.

Much later in 1972 Congress passed the Clean Water act. The President at the time (Nixon) also vetoed the Act. This law like the Rivers and Harbors Act did not explain what a Waters of the US was. Rather, it directed the Army Corps of Engineers to come up with a definition. They did and in 1986 they published the definition as a rule in the Federal Register. It is the same rule that we use today.

In the spring of 2011 the Obama administration leaked (pun intended) a draft Waters of the US guidance document. The guidance was never published but it did give notice to what the new administration was up to. In 2013, another leak of a new draft Waters of the US rule was revealed and in turn, a draft regulation that was published in the Spring of 2014.

The draft Waters of the US regulation has the unique honor of being the most commented regulation in the history of the United States. At the close of the public comment period it had received a little more than 1.2 million public comments. Other regulations tend to sport a few hundred to perhaps a thousand comments. Generally, this means that the regulation gets flushed and the agency starts over.

However, the EPA took the lead on the final version of the regulation and made some major changes including the regulation’s name. The new Clean Water rule was born. This rule was so different that half of the States field lawsuits along with a few private organizations alleging a number of procedural violations along with the Constitutional challenges to the merits of the regulation. For a brief while in 2015 about two thirds of the US was regulated by the Clean Water rule and the plaintiff states were not.

In October 2015, a nationwide stay of the Clean Water rule was imposed by the 6th Circuit Court of Appeals and that is where we float today. The Army Corps and EPA issued a directive that the 1986 definition of Waters of the US would be used until further notice.

The nationwide stay and the court cases bubbled and percolated in the courts until finally rising to the attention of the Supreme Court in 2016. President Obama had asked the Court not to hear the case but they turned him down. This was seen as a loss for the President as the regulation appeared all but domed and likely to go down the drain.

In an interesting turn of events, the new President Trump has also asked the Supreme Court to not hear the case. He was also turned down. However, this has been described as some sort of victory for the rule. Nothing new has happened between December 2016 when President Obama made the request and in early 2017 when President Trump made the request but the interpretation of the response seems very sinuous.

It appears that the high Court will render some sort of decision before the end of the year. Late fall is likely. So, we need to wade through another growing season with the old rule.

Just a few days ago, President Trump announced that there would be some new guidance, an executive order or the like regarding the implementation of the old rule. In a rather clever move, it was announced that the old 2008 US Army Corps guidance developed in response to the Rapanos case and based upon the lone Justice Kennedy option would be updated to reflect the plurality option of Justice Scalia in that same case. In short, what was become to be known as significant nexus would no longer apply. Justice Scalia only required a physical nexus to a navigable waterway. Justice Kennedy’s model would allow a chemical or biological connection in addition to or instead of a physical connection.

The establishment of the Scalia rule would simplify the jurisdictional process but as one might expect there will be lawsuits. In the meantime, we will keep a careful eye on the ebbs and flows of this turbulent process and await the next wave of regulations.