It's Deja Vu All Over Again With Storm Over Waters of U.S. Rule

• Author: Ethan Shenkman
• Position: Partner in the environmental practice at Arnold & Porter
• Pages: 21-21

NOVEMBER/DECEMBER 2021 | 21

Reprinted by permission from The Environmental Forum®, November/December 2021.

Copyright © 2021, Environmental Law Institute®, Washington, D.C. www.eli.org.

Private Practice, Public Policy

NEXT year will mark the 50th

anniversary of the Clean Water

Act, one of the nation’s bedrock

environmental laws. Chances are we

will be no closer to resolving its jurisdic-

tional scope. Practitioners involved in

the use and management of natural re-

sources and the compliance issues they

raise will want to pay close attention, as

the situation is turbulent at best.

In the early 1980s, EPA and the

Army Corps adopted a denition of

“waters of the United States” — found

in the text of the statute but not dened

further — that included a broad swath

of non-navigable tributaries, adjacent

wetlands, and other waters. at deni-

tion lasted nearly four

decades, although it

experienced rough

waters in the Supreme

Court. e govern-

ment’s approach to

CWA jurisdiction was

upheld in Riverside

Bayview (1985), trimmed back in Solid

Waste Agency of Northern Cook County

(2001), and thanks to a splintered 4-1-4

decision rendered topsy-turvy in Rapa-

nos (2006).

In the aftermath of Rapanos, stake-

holders debated which view should

prevail: Justice Scalia’s plurality opinion

limiting jurisdiction over wetlands to

those with a continuous surface con-

nection to other waters of the United

States (supported by four justices); or

Justice Kennedy’s concurring opinion

covering all wetlands with a “signi-

cant nexus” to navigable-in-fact waters.

For the most part, agencies and courts

would apply the signicant-nexus test,

but its precise meaning proved murky.

e Supreme Court expressed frus-

tration with this state of aairs — albeit

arguably of their own making. Justice

Alito lamented in Sackett (2012) that

“for 40 years, Congress has done noth-

ing to resolve this critical ambiguity”

and “EPA has not seen t to promulgate

a rule providing a clear and suciently

limited denition of the phrase.” He

proclaimed, “e reach of the Clean

Water Act is notoriously unclear.”

e Obama administration nally

decided to take the plunge in 2015,

issuing a major WOTUS rulemak-

ing based on a voluminous scientic

record. Scores of plaintis challenged

the Obama rule; scores of intervenors

sought to defend it. ere was a small

detour back to the Supreme Court to

decide whether the proliferating legal

challenges should be heard in the ap-

peals courts or the trial courts in the

rst instance (answer: the latter). And

then, an election happened. e Trump

administration, fullling a campaign

promise, issued an ex-

ecutive order directing

the agencies to hew

more closely to Scalia.

e agencies repealed

the 2015 regulation

and replaced it with

the Navigable Waters

Protection Rule, scaling back CWA ju-

risdiction.

Scores of plaintis challenged the

Trump rule; scores of intervenors

sought to defend it. And then, once

again, an election happened. is time

it was the Biden administration fulll-

ing a campaign promise and issuing an

executive order. EPA and the Corps an-

nounced an intent to proceed with new

rulemakings in two stages: rst to re-

peal, then to replace. (Sound familiar?)

Meanwhile, challenges to the Trump

rule are still pending in over a dozen

courts around the country. Justice De-

partment attorneys had no interest de-

fending the Trump rule while the Biden

administration charted a new course.

So the government led a series of mo-

tions for voluntary remand, asking the

courts to send the matters back to EPA

for further proceedings. And, in DOJ’s

view, the Trump rule could stay in place

in the meantime.

Safe harbor? Not so fast. In late

August, Judge Rosemary Márquez of

the District Court of Arizona granted

DOJ’s remand request, but in an un-

expected twist vacated the Trump rule.

e judge’s order resurrected the 1980s-

era denition, returning full circle to

where the WOTUS journey began.

Judges in other cases expressed disagree-

ment with Marquez’s remedy, since the

courts had not decided the merits of the

pending legal challenges.

A debate ensued as to whether

Márquez’s order had nationwide eect.

e agencies cut it short, however, by

posting a notice on their websites in

September indicating that the Trump

rules would no longer be enforced. EPA

and the Corps announced that they,

too, would return full circle to the de-

nition of “waters of the United States”

rst promulgated in the early 1980s —

at least for now.

Channeling Bill Murray in Ground-

hog Day, environmental practitioners

nd themselves back in the situation

they were in for decades before 2015:

a broad and open-ended WOTUS

denition, subject to numerous admin-

istrative and judicial interpretations,

exacerbated by a splintered Supreme

Court opinion.

Peering down river, what will hap-

pen next? Will Márquez’s order be

appealed? Will the agencies propose

new rules any time soon? Will they

scale back their ambition and make

minimal changes to the WOTUS

denition this time around? Or will

they launch into new and unchar-

tered waters? Time to batten down

the hatches once again.

It’s Deja Vu All Over Again With

Storm Over Waters of U.S. Rule

Scores challenged the

rule; scores defended

it. And then an

election happened

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Ethan Shenkman is a partner

in the environme ntal pract ice at

Arnold & Porte r. Email at ethan.

shenkman@arnoldporter.com.