A bright line mistake: how EPA bungled the clean water rule.

• Author: Parenteau, Patrick
• Position: Controversies Surrounding the 2015 Clean Water Rule

1. INTRODUCTION II. THE 4,000-FOOT LINE IS NOT SUPPORTED BY THE ADMINISTRATIVE RECORD III. THE 4,000-FOOT LINE EXCLUDES WETLANDS, LAKES, AND PONDS THAT HAVE HISTORICALLY BEEN REGULATED AS WOTUS IV. THE 4,000-FOOT LINE WAS ADOPTED IN VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT'S NOTICE AND COMMENT REQUIREMENT V. THE 4,000-FOOT LINE WAS ADOPTED IN VIOLATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT'S ENVIRONMENTAL IMPACT STATEMENT REQUIREMENT VI. CONCLUSION I. INTRODUCTION

   In their joint rulemaking to develop a revised definition of the vexed statutory term "waters of the United States" (WOTUS), the Environmental Protection Agency (EPA) and the Department of the Army, which oversees the Corps of Engineers, faced a Sisyphean task: crafting a methodology for determining the geographic scope of the Clean Water Act (CWA) (1) that was scientifically sound, legally defensible, and politically viable. The proposed rule that EPA published on April 24, 2014 scored well on the first two counts. (2) It was backed up with the most comprehensive, peer-reviewed synthesis of watershed science ever conducted, (3) and it was built on a solid legal foundation keyed to Justice Kennedy's "significant nexus" test in Rapanos v. United States (Rapanos) (4) which has been adopted by nine circuit courts as the controlling standard for judging what constitutes a WOTUS. (5)

   Not surprisingly, however, the proposed rule ran into a firestorm of political opposition from a number of states, the farm lobby, and a coalition of developers and extractive industries. (6) Much of the opposition was based on a misunderstanding, and in some cases, deliberate misrepresentation of what the proposed rule did and did not do. (7) EPA's outreach efforts, though unprecedented for CWA rulemaking, (8) failed to calm the waters, and its aggressive use of social media to counter the "#DitchtheRule" propaganda of the opponents (9) with EPA's own "#DitchtheMyth" campaign ultimately led to a critical report by the Government Accountability Office accusing the agency, perhaps unfairly, of engaging in its own brand of "covert propaganda." (10)

   The intense political battles, and a close call on a vote in Congress to halt the rulemaking, (11) may have played a role in EPA's eleventh hour decision to make major changes in the final Clean Water Rule published on June 29, 2015. (12) The most dramatic change involves drawing, for the first time in the history of the CWA, "bright-line boundaries" limiting the reach of jurisdictional waters. (13) The final rule includes a number of bright fines (14) but the one that is the focus of this paper is the 4,000-foot cutoff that categorically excludes wetlands, lakes, ponds, and other water bodies that are more than 4,000 feet from a stream's "ordinary high water mark" (OHWM) or "high tide line" (HTL). (15) This artificial cutoff has no basis in science, law, or the history of the CWA. It caught everyone off guard, including the Army Corps of Engineers, (16) EPA's erstwhile partner in administering the section 404 permit program, which has been the catalyst for all three of the Supreme Court cases involving the definition of WOTUS. (17) The Clean Water Rule is under attack from all sides in courtrooms all over the country. (18) It will take years to sort out all of the issues that have been raised with perhaps no final resolution until the Supreme Court has spoken. For the following reasons, this bright line rule is likely to be struck down as arbitrary and capricious under the Administrative Procedure Act (19) by whichever court ends up deciding the question.

2. THE 4,000-FOOT LINE IS NOT SUPPORTED BY THE ADMINISTRATIVE RECORD

   There is no scientific basis or explanation for where EPA chose to draw the line. What is the hydrological, geological, or ecological significance of 4,000 feet? Why not 3,000, or 5,000, or 10,000? Why pick a number at all? Indeed, that was the view of EPA's Science Advisory Board (SAB), which cautioned EPA that "adjacent waters and wetlands should not be defined solely on the basis of geographical proximity or distance to jurisdictional waters." (20) The views of the SAB are particularly salient. The SAB was established in 1978 by the Environmental Research, Development, and Demonstration Authorization Act. (21) The statutory purpose of the SAB is to review and provide EPA "advice and comments on the adequacy of the scientific and technical basis of the proposed criteria document, standard, limitation, or regulation" under the CWA and other statutes. (22) The SAB is a formal body subject to the public meeting, transparency, representational, conflict of interest, and other requirements of the Federal Advisory Committee Act. (23) Its charter must be renewed every two years by Congress. (24) Membership is by appointment and consists of "independent experts in the fields of science, engineering, economics, and other social sciences to provide a range of expertise required to assess the scientific and technical aspects of environmental issues." (25)

   The SAB does its work through panels and workgroups. To review the "Connectivity Report" that provided the scientific basis for the Clean Water Rule, the SAB convened a special panel composed of a wide range of experts in the fields of hydrology, geomorphology, ecology, and other relevant disciplines. (26) Though the panel's detailed peer review of the Connectivity Report confirmed all of its major findings on the importance of headwater streams and wetlands to the "physical, chemical and biological integrity" (27) of downstream navigable waters, the panel was more critical of EPA for its narrow definition of tributaries; exclusion of groundwater, shallow subsurface connections, and ditches; and limited definitions of adjacent waters. (28) In the preamble to the final rule, EPA acknowledges the SAB's critique but dismisses it with this terse response:

   Significant nexus is not a purely scientific determination. The opinions of the Supreme Court have noted that as the agencies charged with interpreting the statute, EPA and the Corps must develop the outer bounds of the scope of the CWA, while science does not provide bright line boundaries with respect to where "water ends" for purposes of the CWA. Therefore, the agencies' interpretation of the CWA is informed by the Science Report and the review and comments of the SAB, but not dictated by them. (29) EPA also noted the SAB's admonition that '"the available science supports defining adjacency or determination of adjacency on the basis of functional relationships,' rather than 'solely on the basis of geographical proximity or distance to jurisdictional waters.'" (30) Nevertheless, EPA maintained that the jurisdictional call was a mixed question of science and law imbued with considerable agency discretion:

   The agencies have determined which waters are adjacent, and thus jurisdictional under the rule, based on both functional relationships and proximity because those factors identify the waters that have a strong influence on the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial seas.... The agencies' determination is informed by the science, and consideration of proximity is reasonable in interpreting the scope of adjacency. (31) This explanation is, to put it mildly, underwhelming. EPA fails to explain why proximity is critical as a legal or policy matter, or how the 4,000-foot line was arrived at, or what implications it has for removing protection for important aquatic resources. Proximity of wetlands to nonnavigable tributaries was not a major factor in Justice Kennedy's significant nexus test in Rapanos. (32) In fact, Justice Kennedy acknowledged the potential cumulative significance of geographically isolated wetlands with no direct hydrologic connection to navigable waters provided they were "similarly situated lands in the region"--by which he presumably meant the watershed. (33) Proximity was not a decisive factor in the majority of cases that have adjudicated disputes over the lateral extent of CWA jurisdiction over adjacent wetlands, ponds, and other water bodies. (34) That is not to say that proximity is irrelevant to considerations of the functional relationship between streams and adjacent wetlands, only that picking an arbitrary number like 4,000 feet as the point at which federal jurisdiction ends without articulating a convincing reason for doing so is a questionable exercise of agency discretion.

3. THE 4,000-FOOT LINE EXCLUDES WETLANDS, LAKES, AND PONDS THAT HAVE HISTORICALLY BEEN REGULATED AS WOTUS

   The evidence that the 4,000-foot line excludes waters historically regulated as WOTUS comes from a very unlikely but authoritative source--the Corps of Engineers. An unlikely source because the Corps was initially resistant to including wetlands within the ambit of its section 404 regulatory authority. It took a court order to convince the Corps that Congress intended wetlands to come within the definition of "navigable waters." (35) An authoritative source because the Corps has made over 400,000 jurisdictional determinations (36) since (2008) under the post-Rapanos guidance ((2008) Rapanos Guidance) issued by EPA and the Army Corps of Engineers. (37) Of these, over 120,000 involved case-specific significant nexus determinations. (38)

   In a series of internal interagency documents that were never intended to be made public, the senior counsel, regulatory staff, and commanding officers of the Corps detailed the flaws in the data and reasoning underlying the bright line test EPA adopted. In a scathing memo the Assistant Chief Counsel for the Corps' Environmental Law and Regulatory Programs wrote:

   The draft final rule excludes from jurisdiction of the CWA large areas of lakes, ponds, and similar water bodies that are important components of the tributary system of the navigable waters and that the Federal government has been...