Federalism, regulatory architecture, and the clean water rule: seeking consensus on the waters of the United States.

• Author: Ryan, Erin
• Position: Controversies Surrounding the 2015 Clean Water Rule

1. INTRODUCTION II. THE CWA AND THE "WATERS OF THE UNITED STATES" A. Wetlands Regulation Under the CWA B. Riverside Bayview Homes and Significant Nexus C. SWANCC and Hydrologically Isolated Wetlands III. THE SUPREME COURT MUDDIES THE WATER IN RAPANOS A. Judicial Disarray in Rapanos B. Wetlands Regulation After Rapanos IV. Trying Again: The Clean Water Rule A. The Clean Water Rule B. Resolving Rapanos at the Level of Regulatory Architecture V. CONCLUSION I. INTRODUCTION

   This Article reviews the troubled history of the "Waters of the United States" Rule (the Rule) (1) of the Clean Water Act (CWA or Act), (2) and analyzes how its newest incarnation harnesses a surprising point of convergence between the conflicting Supreme Court interpretations in Rapanos v. United States (Rapanos) (3) that necessitated its development. While debate over the federalism implications of the Rule rages on, (4) the framework it creates from the multiple Rapanos opinions suggests that the path forward hinges less on the substantive rule of jurisdiction and more on the regulatory architecture of presumptions, default rules, and burden shifting. (5) Splitting the difference between competing judicial approaches, the new Rule alternates presumptions in favor of and against federal regulation in different hydrological contexts to appropriately support competing regulatory goals. By capitalizing on an elusive thread of continuity among seemingly irreconcilable judicial viewpoints, the Clean Water Rule may win safe passage through the next round of judicial review.

   The Rule has long interpreted the part of the CWA (6) that establishes the breadth of American waterways subject to federal protection under the Act. (7) Despite decades of effort by agencies, courts, and litigants to clarify the reach of federal authority under the Rule, (8) it remains one of the most persistently uncertain exercises of national regulatory jurisdiction in any field. (9) Because the statutory language construed by the Rule references navigability as a jurisdictional criterion, (10) jurisdictional uncertainty associated with the Rule is especially pronounced with regard to nonnavigable wetlands (11) that are not directly adjacent to conventionally navigable lakes and rivers, but that may nonetheless significantly impact these larger (and clearly jurisdictional) waterways downstream. (12) Over the years, a series of divisive Supreme Court interpretations of the Rule (culminating in Rapanos) have forced regulatory architects to the drawing table again and again, striving for a resolution that satisfies the relevant statutory, judicial, scientific, and public concerns. (13)

   In 2015, following the most recent round of judicial upheaval, responsive political wrangling, and heated public engagement, a new version of the Rule--the "Clean Water Rule" (14)--was finally promulgated by the two implementing agencies, the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA). (15) The Clean Water Rule emerged only after several previous attempts to produce clarity had failed, including regulatory guidance issued by EPA and the Corps in 2008, (16) an earlier attempt by the implementing agencies to revise the Rule in 2011, (17) and various proposals for direct statutory reform by Congress (18)--some of which would have strengthened federal reach, (19) while others would have weakened it. (20) Crafted amidst this intense political dissensus, the Clean Water Rule seeks a compromise position between competing extremes, clarifying limits on federal reach while remaining grounded in the best available hydrological science. (21) It reduces the need for case-by-case analysis in some contexts while preserving it in others, (22) mitigating the uncertainty that has undermined the regulatory process while preserving flexibility to cope with harder calls.

   The Clean Water Rule continues to assert categorical jurisdiction over most navigable waterways (23) and tributaries that are characterized by a bed, banks, and ordinary high water mark, (24) and it includes directly adjacent wetlands (within specified distances). (25) These waterways will be subject to federal jurisdiction without further analysis, although based on a set of measurable, physical criteria that limit the categorical assertion of federal authority. (26) The Clean Water Rule also categorically excludes certain waterways from jurisdiction, including waste treatment, stormwater, and wastewater systems, prior converted cropland, certain artificial lakes and ponds, groundwater, and most ditches. (27) No further analysis is needed to rebut an assertion of federal jurisdiction in these cases. (28) Finally, it establishes criteria for determining jurisdiction over waterways beyond these categories based on their relationship to primary jurisdictional waters. (29) Nonadjacent wetlands may be federally regulated if they are shown to have a significant connection (or "nexus") to navigable waterways, because their own destruction could negatively impact the chemical, physical, or biological integrity of the larger waterways downstream. (30) These waterways will be considered jurisdictional only if the requisite nexus is established on the basis of case-specific analysis; (31) wetlands that fail the test fall beyond federal reach. (32)

   This articulation of the Rule responds to many of the vexing jurisdictional questions left open by earlier judicial interventions. (33) It creates, for the first time, a set of measurable parameters for streamlining and unifying jurisdictional determinations, constraining agency discretion on the basis of peer-reviewed scientific consensus about the hydrological and ecological functions of waterways. (34) It attempts to moderate competing political demands for unlimited and eviscerated jurisdictional reach. (35) Nevertheless, the Clean Water Rule has not yet brought the hoped-for regulatory closure; the Sixth Circuit stayed the Rule nationwide shortly after it took effect, pending litigation by multiple states and other organizations in over a dozen separate cases (arguing that the Rule both over- and underregulates). (36) Wearyingly if unsurprisingly, legal uproar over the reach of the Rule continues, and it will likely press on until the Supreme Court visits the issue yet again.

   If the Court takes the case, however, the Justices will be reviewing a rule that responds directly to the mixed messages they sent the agencies during the infamously fractured Rapanos decision, in which the Court split five ways in its attempt to establish the appropriate boundaries of federal reach. (36) Together with a concurring opinion by Justice Kennedy, Justice Scalia's plurality of four agreed to reject and remand the Corps' assertion of jurisdiction over wetlands with remote connections to navigable waters. (38) However, they parted company on how the jurisdictional call should be made on remand, with Justice Scalia suggesting that jurisdiction extend only to wetlands with a permanent surface connection to navigable waters, and Justice Kennedy suggesting that jurisdiction may legitimately extend to other wetlands as well, if the government shows a significant nexus to navigable waters on a case-by-case basis. (39) Chief Justice Roberts joined in Justice Scalia's opinion, but wrote separately to chastise the agency for continuing to assume overly broad authority under the statute. (40) Meanwhile, dissenting on behalf of the remaining four, Justice Stevens argued that it was reasonable to defer to the agency's blanket assertion of authority over like wetlands on grounds that most will have a significant nexus with navigable waters--so long as it is possible for a permit applicant to show why the wetland she wants to fill lacks that nexus. (41) Justice Breyer joined the dissent but also wrote separately to emphasize that deference to the agency was reasonable because its interpretation was the only way to accomplish the objectives of the Act. (42)

   Notoriously among the least helpful Supreme Court decisions of all time, Rapanos brims with competing rationales that failed to establish meaningful guidance for decision makers. (43) While the Rapanos disarray fueled a vortex of regulatory uncertainty for stakeholders, agencies, and the lower courts struggling to interpret it afterward, it also sowed the seeds of compromise in the allocation of regulatory burdens in the new Clean Water Rule. Most notably, the Clean Water Rule capitalizes on a convergence between the Kennedy concurrence and Stevens dissent, which create similar substantive rules of jurisdiction, but effectively allocate the burden of proof differently by establishing opposite presumptions in marginal cases. (44)

   In Rapanos, Kennedy's approach theoretically enables jurisdiction throughout the hydrological chain so long as a significant nexus is shown, but it puts the burden of establishing nexus for nonadjacent wetlands on the agency. (45) This can be very expensive for the agency, and on balance, is likely to result in less regulation (affirmed in the wake of Rapanos, when the United States gave up on thousands of enforcement actions rather than invest scarce agency resources in trying to prove jurisdiction). (46) Meanwhile, Stevens's dissent would also allow far-flung jurisdiction on the same scientific premise (47)--but it assumes significant nexus throughout the hydrological chain, in deference to the agency's interpretation of what is needed to effectuate CWA statutory goals. (48) Still, it allows the landowner to effectively rebut the presumption of significant nexus in marginal cases, putting the burden on the landowner to show why a given wetland should not be jurisdictional for lack of nexus (at which point, the agency would cede its jurisdictional entitlement to the landowner by granting the permit). (49) Of course, this can be expensive for a landowner, and all else equal, would probably result in less...