THE CLEAN WATER RULE: NOT DEAD YET.

• Author: Parenteau, Patrick
• Position: Symposium: Environmental Law Under Trump

1. BACKGROUND 379 II. ENTER THE TRUMP ADMINISTRATION 380 III. SETTING THE RECORD STRAIGHT 383 IV. THE CLEAN WATER RULE ACTUALLY REDUCES HISTORIC CWA JURISDICTION 387 A. Tributaries 388 B. Ditches 390 C. Adjacent Waters 391 D. Case-Specific Waters 392 E. Excluded Waters 394 V. THE CLEAN WATER RULE CREATES NET ECONOMIC BENEFITS 395 VI. THE CLEAN WATER RULE Is BASED ON A CONSERVATIVE READING OF SUPREME COURT PRECEDENT 398 VII. So Now WHAT? 402 VIII. CONCLUSION 405 I. BACKGROUND

   The "Clean Water Rule: Definition of Waters of the United States" (dubbed "WOTUS" by its opponents) was published in the Federal Register on June 29, 2015, and became effective August 28, 2015. (1) The final rule followed an extensive multi-year, joint rulemaking conducted by the United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (Corps) that featured a comprehensive, peer-reviewed scientific study of the interconnected nature of aquatic ecosystems and the vital importance of headwater streams and wetlands to the biological health and countless beneficial uses of the nation's major rivers, lakes, and estuaries. (2) It followed over four hundred meetings with state and local officials, tribes, small businesses, farmers, conservationists, and other stakeholders across the country. (3) It generated over one million public comments, the bulk of which supported the rule. (4) It was by all accounts one of the most extensive rulemakings ever undertaken under the Clean Water Act (5) (CWA).

   It was also one of the most controversial environmental rules adopted during the Obama Administration, with opposition coming from dozens of states (mostly "red") and powerful political forces such as the Chamber of Commerce, American Farm Bureau Federation, and National Association of Manufacturers. (6) It ignited an explosion of litigation that still rages. (7)

   Within days of its publication, a group of states rushed to the federal courthouse in Fargo, North Dakota and obtained a preliminary injunction barring implementation of the rule in thirteen states. (8) Weeks later, the United States Court of Appeals for the Sixth Circuit issued a nationwide stay of the rule pending the outcome of multiple challenges, from those who say the rule is a stark example of federal overreach to those who say it represents an unlawful giveaway of federal authority. (9) However, on January 22, 2018, the Supreme Court reversed the Sixth Circuit in National Ass'n of Manufacturers v. Department of Defense (10) (NAM v. DOD) ruling that challenges to the clean water rule must be brought in the district courts under the Administrative Procedure Act (11) (APA) rather than in the courts of appeals under section 509(b) of the CWA. (12) On February 28, 2018, the Sixth Circuit lifted the stay. (13) Normally, this would mean that the 2015 rule would immediately become effective within the thirty-seven states not subject to the preliminary injunction issued by the North Dakota court. However, as discussed below, the Trump Administration has attempted to delay the rule for two years to give it time to repeal and replace it.

2. ENTER THE TRUMP ADMINISTRATION

   One of the most outspoken critics of the rule is none other than President Donald J. Trump, who made good on his campaign promise to axe the rule by issuing Executive Order 13778 directing EPA and the Corps to review the 2015 rule and "publish for notice and comment proposed rules rescinding or revising" the rule. (14) The Executive Order also directs the agencies to "consider interpreting the term 'navigable waters'... in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States." (15) In brief, that opinion would limit the jurisdiction of the CWA to "relatively permanent, standing or continuously flowing bodies of water," and to wetlands with a "continuous surface connection" to such relatively permanent waters. (16) If adopted this novel, unscientific, judge-made definition would radically reduce the historic reach of the CWA and severely compromise the statutory objective "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (17)

   To implement Executive Order 13778, the agencies settled on a two-step strategy involving two separate rulemakings. In step one, on July 27, 2017, the agencies proposed a rule (18) to rescind the 2015 rule and "recodify" the previous 1986 rule. (19) The preamble states that the purpose of the proposed rule is to "re-codify the exact same regulatory text that existed prior to the 2015 [Clean Water Rule], which reflects the current legal regime under which the agencies are operating." (20)

   In step two, the agencies propose to develop a replacement rule starting with a "public outreach" effort to solicit comments from stakeholders on how a replacement rule should be crafted. (21) As part of this "outreach," Administrator Pruitt appears in a video produced by the National Cattlemen's Beef Association soliciting support for his efforts to repeal and replace the Clean Water Rule. (22) In the video, Pruitt says, "The Obama administration reimagined their authority over the Clean Water Act and defined a water of the United States as being a puddle, a dry creek bed and ephemeral drainage ditches all across this country, which created great uncertainty, as you might imagine." (23) In fact, as will be discussed in more detail, the Clean Water Rule did no such thing. It explicitly excludes "puddles," and it also specifies that dry creek beds that do not have a bed, bank, and high water mark, and ephemeral ditches that "flow only after precipitation" are excluded. (24)

   To further complicate things, the agencies issued a rule on February 6, 2018, proposing to add an "applicability date" to the 2015 rule delaying compliance until November 22, 2019. (26) In an attempt to justify this unusual and likely illegal move, the agencies said, "The Code of Federal Regulations text does not include an applicability date; therefore... the agencies are amending the text of the Code of Federal Regulations to add an applicability date." (26) Pruitt tried a similar gambit with a Clean Air Act (27) rule regulating methane emissions from the oil and gas industry. The United States Court of Appeals for the District of Columbia Circuit struck it down in Clean Air Council v. Pruitt (28) ruling that the APA prohibits agencies from staying compliance with rules that have already become effective. (29) The "applicability date" rule has been challenged by the New York Attorney General and by several environmental organizations. (30)

   The purpose of these machinations seems to be threefold: to move as quickly as possible to delay and repeal the 2015 rule, to moot the ongoing litigation, and to buy time to develop a replacement rule along the lines of the plurality opinion in Rapanos. It is not at all clear that the Trump Administration will succeed with this strategy. First, the "step one rule" rescinding the 2015 rule will be a final agency action subject to judicial review as soon as it is published in the Federal Register, and as I have pointed out elsewhere, (31) it is unlikely to survive scrutiny under the State Farm Mutual (32) doctrine requiring a "reasoned explanation" for summarily rescinding a rule that was based on an extensive administrative record and a large body of supportive case law. (33) Second, in light of the Supreme Court ruling in NAM v. DOD, challenges to the 2015 rule and the attempts to delay, rescind, and replace it lie in the district courts under the APA and not in the courts of appeals under the CWA. (34) Barring a nationwide injunction to replace the Sixth Circuit stay that has been lifted, the 2015 rule would be in effect in most of the country. (35) Finally, the gambit of delaying the 2015 rule by establishing a new "applicability date" of 2019 is not likely to survive judicial scrutiny.

   Stepping back from all this political intrigue and legal maneuvering for a moment, the larger question is simply this: How should the boundaries of federal jurisdiction be determined in a way that effectuates the remedial purposes of the CWA while respecting the role of the states within the framework of cooperative federalism? Contrary to the President's Order, the Scalia opinion is not the touchstone for determining this nuanced question. In fact, it would ensure that the goals of the CWA cannot be realized by potentially excluding up to 60% of stream miles that have been covered by the CWA for decades. (36) The balance of this Article will argue that Justice Kennedy's significant nexus test, as fleshed out in the Clean Water Rule, provides a better framework for balancing the competing polices of the CWA in a way that best serves the national interest.

3. SETTING THE RECORD STRAIGHT

   Contrary to the hyperbolic claims of many, not least President Trump, (37) Administrator Pruitt, (38) and the Republican leadership in Congress, (39) the rule is not a "power grab," and it does not expand the historic reach of the CWA. In fact, it shrinks it, though by exactly how much is hard to calculate. Before diving into the details, some historical perspective is necessary.

   The Clean Water Rule revises regulations that have been on the books, in one form or another, for over four decades. (40) Under these regulations the term "waters of the United States" (41) has consistently been interpreted in light of Congress's intent, oft repeated in the 1972 legislative history, that the CWA was meant to reach to the limits of its constitutional authority. (42) As Senator Muskie, widely regarded as the "father" of the CWA, famously said: "Water moves in hydrological cycles and it is essential that that the discharge of pollutants be controlled at the source." (43) John Dingell, the principal sponsor in the House, said the use of the term "navigable waters" in the statute meant "all 'the waters of the United States' in a...