Wetland Regulations 101: Future

The 6th Circuit Speaks: The Clean Water Rule Court Cases Move Forward

3/4/2016

The Court of Appeals for the Sixth Circuit (based in Cincinnati, Ohio) ruled on Monday, February 22, 2016, that the appellate court HAS the jurisdiction to review the multitude of consolidated cases brought against the EPA disputing The Clean Water Rule.

The fractured 1:1:1 decision by the 3-judge panel looked at case precedence (National Cotton Council v. EPA) and attempted

to interpret Congress’ intent (by looking at the congressional responses to the precedence).

This process appears to be a dance between the judicial and legislative branches of our government to ascertain what our nation’s laws should be and how they should be interpreted. And, as we saw with Senate Joint Resolution 22 this year, the executive branch jumps in with their say in the form of a VETO and the occasionally contentious Executive Orders.

Since the decision handed down was divided, a number of agriculture and industry groups are asking that all 23 judges of the Sixth Circuit review the jurisdictional question (a process called an en banc review)**. The special interest groups are stressing that this decision has such important implications to the nation’s water regulations that a larger (perhaps more harmonious) judicial review of the question would better serve the interests involved.

One observation I wanted to note here made by Timothy Cama of The Hill – “If numerous district courts were allowed to take up the lawsuits [as some of the parties prefer], they could issue mismatching rulings, which would expedite potential appeal to the Supreme Court.” The importance of the recent death of Justice Antonin Scalia (considered a conservative judge) is heightened due to the possible influence on the outcome of any current or upcoming Supreme Court cases related to the Clean Water Rule.

Numerous cases in other appellate courts and district courts had been postponed until the Sixth Circuit decided the question of venue, so this decision on February 22nd carries quite a bit of weight.

For now, the decision means that the nationwide stay of the Clean Water Rule remains in effect and the consolidated case* in the Sixth Circuit that challenges the Clean Water Rule will proceed. At this time, it does not appear that the court has set its schedule for hearing the case.

- JMB

*Just as a reminder, the consolidated case in the Sixth Circuit pulls together Clean Water Rule challenges from the Second, Fifth, Sixth, Eighth, Ninth, Tenth, Eleventh, and District of Columbia Circuits (8 of the 13 U.S. Court of Appeals).

**UPDATE: The U.S. court has not responded to the en banc review request yet.

Sources:
WOTUS Court Conflict by Todd Neely, a DTN.com reporter, 3/1/16

Court to hear case against Obama’s water rule by Timothy Cama, The Hill.com reporter, 2/22/16

Sixth Circuit Agrees to Hear Challenge to Clean Water Act by Justin Jennewine, one of Squire Patton Boggs' Sixth Circuit Appellate bloggers, 2/23/16

Sixth Circuit Court of Appeals will hear WOTUS Rule by Peggy Kirk Hall, Ohio State University assistant professor, 2/26/16

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The Clean Water Rule: Senate Joint Resolution 22, update...

2/24/2016

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I wanted to update you on the progress of Senate Joint Resolution 22, which proposes to prevent the implementation of the Clean Water Rule.

The resolution passed the House on January 13, 2016, with a Yea-Nay vote of 253-166.

The resolution was presented to President Obama on January 19, 2016, and he vetoed the resolution on January 20, 2016.

It appears that no further action has been taken by the Senate at this time - "Veto message indefinitely postponed by Senate by Unanimous Consent."

We continue to wait on a decision by the U.S. Circuit Court of Appeals for the Sixth Circuit on the limited question of whether the court has jurisdiction to hear the consolidated cases brought by 31 states and others against the EPA challenging the Clean Water Rule. If the court finds that it does have jurisdiction, it will then consider the allegations brought against the Clean Water Rule.

The allegations posed against the Clean Water Rule are: it is not a logical outgrowth of the proposal; the Administrative Procedure Act was not adhered to; the rule is unconstitutional in its regulation of intrastate waters; and parts of the rule are considered arbitrary and capricious. The oral arguments were presented to the court on December 8, 2015.

Since there is a nationwide court-ordered stay on the Clean Water Rule (as of October 9th, 2015), it could be weeks or months before the Sixth Circuit comes to a decision on their jurisdictional issue.

Waiting with bated breath!

- JMB

Sources:
www.congress.gov
Sixth Circuit Hears Arguments Over its Jurisdiction to Decide WOTUS Challenge, by
Katerina Milenkovski, January 5, 2016 ( http://www.environmentalessentials.com)

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The Clean Water Rule - January 2016 Seminar

1/27/2016

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I was given the opportunity to present a seminar on The Clean Water Rule: Details and Legal Status this month. It was a challenge to compress over 200 years of history of the environmental regulations, along with past court cases explaining where we are today, combined with explaining the details of The Clean Water Rule. The icing on the cake, so to speak, was explaining the current legal status of this federal law in the court system – ALL within 60 minutes. Needless to say, I was hustling, but managed to hit the mark.

In order to gain maximum attention and interest in what can be a rather difficult and complex subject to follow, I decided to incorporate an instant polling app within PowerPoint. I had seen something similar used at the first annual Women in the Workforce Conference (May 2015) in Fayetteville, AR, by the premier sponsor Rockfish.

Overall, I was very pleased with how the seminar went. I would say that the biggest challenge appeared to be getting the Poll Everywhere app to properly download and execute within the software where I was presenting the seminar. I arrived nearly 1-1/2 hours before the seminar began and the IT specialist started working on getting the Poll Everywhere software to work. In the end, we decided to use my laptop (where the Poll Everywhere app was working correctly) to display the presentation. My hat goes off to the IT specialist for getting it all to work! He did it with about 5 minutes to spare.

One interesting observation about using Poll Everywhere - I would estimate 33% of the seminar attendees participated in the poll questions. I would have expected more, but maybe it was too new to the seminar attendees and they did not feel compelled to participate.

Lastly, next time someone asks to assist me with forwarding the slide presentation (rather than using a “wheel-type” remote), TAKE THEM UP ON IT! Lesson learned…and I'm eating humble pie.

-JMB

Updated June 2017. Associated PDF of the powerpoint presentation was deleted.

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Criticisms of the Clean Water Rule

1/15/2016

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If you have been following my blog, you will already know that The Clean Water Rule is the new regulation re-defining Waters of the United States. “The Rule” is found in the Federal Register, Vol. 80, No. 124, Monday, June 29, 2015. “The Rule” became effective 60 days later on August 28, 2015, until October 9, 2015, when the U.S. Court of Appeals for the Sixth Circuit ordered a nationwide stay.

In attempting to understand the criticisms of the Clean Water Rule and objections of vocal stakeholders, I decided to provide a list of the arguments that have been put forth in the court cases brought against the EPA (cases involving 100+ plaintiffs/petitioners who are state entities, natural resource departments of states, commerce organizations, and a plethora of other entities).

Here is a list of these objections to the Clean Water Rule. They range from the legal procedural development of the regulation to the science behind it.
1. [The Clean Water Rule] granted too much federal jurisdiction over what has previously been thought of as state-controlled waters. [Look back to my blog regarding the Rivers & Harbors Act of 1890 and 1899 where compromises were made to recognize state authority over interstate waters.] Here it is thought that the agencies are exceeding the Clean Water Act (CWA) authority and The Rule is inconsistent with CWA’s plain language.
2. [The Clean Water Rule] was not in line with existing precedent. This is certainly a debatable point since there have been calls on both sides to clarify previous confusing court decisions.
3. The adoption [of The Clean Water Rule] failed to follow mandatory federal rule-making procedures. Some argue there were substantial changes to the proposed rule without additional public comment before the final rule was released (most specifically the “arbitrary” distances in section (a8) of The Rule). Therefore, the final rule was not a “logical outgrowth” of the proposed rule. The agencies failed to make all information relied upon available to the public, and failed to respond appropriately to comments.
4. There are also concerns regarding constitutional violations of the Commerce Clause, the Tenth Amendment (State’s Rights), and the Due Process Clause
5. Miscellaneous other violations of several acts: Regulatory Flexibility Act; Unfunded Mandates Reform Act; National Environmental Policy Act; Anti-Lobbying Act (agencies pushing the boundaries of social media in informing the public of The Rule); and Executive Orders.

Court decisions (specifically the U.S. District Court for the District of North Dakota) so far have listed several objections to the Clean Water Rule:
1. Tributary definition TOO broad.
2. No evidence of connectivity of adjacent waters to traditionally navigable waters.
3. Lack of scientific support for The Rule; making it arbitrary or capricious.

So, when will we know one way or the other if The Clean Water Rule will become law, again? It is my understanding that it could be weeks or even months before the U.S. Court of Appeals for the Sixth Circuit announces a decision regarding who (the District Courts OR the Circuit Court of Appeals) has the jurisdiction to hear the court cases brought against the EPA . Compliance issues with the Administrative Procedure Act are what is being reviewed with this question. [Oral arguments were presented December 8, 2015.] With the stay in place [which all parties and the court agreed the circuit court has the authority to issue], there is no rush for a decision.

So we wait on the next judicial move…..

-JMB

Sources:
Society of Wetland Scientists, Clean Water Rule Workshop, Memphis, Tennessee, October 8, 2015

ASWM Guest Blog: Plot Twist: Sixth Circuit Stay of the Long-Awaited Clean Water Rule Makes a Potential “Happily Ever After” A Bit More Elusive - by Professor Kim Diana Connolly, SUNY Buffalo Law School, October 23, 2015

Webinar: Legal Challenges to the Clean Water Rule: Which Court? What Questions? What Timeframe?, Association of State Wetland Managers, Thursday, November 19, 2015, Panelists were Roy Gardner, Professor of Law and Director, Institute for Biodiversity Law and Policy, Stetson University College of Law and Kim Diana Connolly, Professor, Director of Clinical Legal Education, Vice Dean for Legal Skills, SUNY Buffalo Law School.

Does the Court of Appeals have Jurisdiction to Review the Clean Water Rule? Sixth Circuit Court of Appeals to Hear Arguments Tomorrow, Kathy Milenkovski, December 7, 2015

Sixth Circuit Hears Arguments Over Its Jurisdiction to Decide WOTUS Challenge, By Katerina E. Milenkovski, Published: January 5, 2016

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The Clean Water Rule: Senate Joint Resolution 22

12/14/2015

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In this posting, I wanted to give an update on the Clean Water Rule. A joint resolution* as sponsored by Senator Joni Ernst (Republican of Iowa) was introduced on September 17, 2015 - read twice and referred to the Senate Committee on Environment and Public Works.

Below is an exact quote of the Senate Joint Resolution 22.

SENATE JOINT RESOLUTION 22
Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Corps of Engineers and the Environmental Protection Agency relating to the definition of “waters of the United States” under the Federal Water Pollution Control Act.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That Congress disapproves the rule submitted by the Corps of Engineers and the Environmental Protection Agency relating to “Clean Water Rule: Definition of ‘Waters of the United States’” (80 Fed. Reg. 37054; June 29, 2015), and such rule shall have no force or effect.

114th Congress, First Session (2015-2016)

This resolution passed the Senate on November 4, 2015, without amendment by a Yea-Nay vote of 53-44.

Below is the voting record of the senators in my four-state area:

Arkansas: Boozman (R-AR), Yea; Cotton (R-AR), Yea

Missouri: Blunt (R-MO), Yea; McCaskill (D-MO), Nay

Oklahoma: Inhofe (R-OK), Yea; Lankford (R-OK), Yea

Kansas: Moran (R-KS), Yea; Roberts (R-KS), Yea

More voting records can be found here.

For simple trend analysis, I totaled the Nays and Yeas votes by party affiliates.
Yeas: 53 (50 Republicans and 3 Democrats: Donnelly, IN; Heitkamp, ND; Manchin, WV)
Nays: 44 (41 Democrats, 2 Independents: King, ME; Sanders, VT; and 1 Republican: Collins, ME)

Those who did not vote on this resolution were Graham (R-SC), Rubio (R-FL), and Vitter (R-LA).

The legislation has now moved onto the House and will ultimately go to President Obama.

Since the court system is still determining if the jurisdiction to review the Clean Water Rule lies with the courts of appeals or district courts, it appears we have two fronts going on with the Rule: legislative and judicial.

-JMB

*A joint resolution is a resolution adopted by both branches of a 2-house legislative assembly and requires the signature of the chief executive to become law.

Sources:
Federal Register / Vol. 80, No. 124 / Monday, June 29, 2015 / Rules, Effective August 28, 2015
http://issuu.com/societyofwetlandscientists/docs/dec_2015_wsp_final SWS Dec 2015 Newsletter
https://www.congress.gov/bill/114th-congress/senate-joint-resolution/22/text
http://dictionary.reference.com/

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Federal Water Quality Protection Act

11/10/2015

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The Federal Water Quality Protection Act is a Senate bill that was sponsored by Senator John Barrasso (R-WY), along with 26 other Republican senators and 3 Democrat senators. This Senate bill hoped to overturn the Clean Water Rule and also gave the EPA specific instructions with a deadline for writing it in a way that would include fewer waterways and impede less on private and state property rights.

The bill was voted on November 3, 2015, (Yeas to Nays, 57-41) and fell short of the 60 votes needed to end debate on whether to take up [for Senate consideration] the bill. The close vote was mostly along party lines. Joining the Republicans vote to move the bill forward were Democrat Senators Heidi Heitkamp (ND), Joe Manchin (WV), Joe Donnelly (IN), and Claire McCaskill (MO).

The vote occurred despite the White House’s threat earlier in the day to veto the bill. The White House says the Federal Water Quality Protection Act will cause more confusion, uncertainty, and inconsistency in enforcement of the Clean Water Act.

The Republicans attest the Clean Water Rule is an attempt to extend the reach of federal bureaucracy as widely and intrusively as possible.

The Senate is considering taking up legislation proposed by Senator Joni Ernst (R-IA) under the Congressional Review Act that only requires a simple majority of senators to pass, and not the 60 votes needed for the failed Barrasso bill.

-JMB

Sources:
Senate Vote Results
http://thehill.com/
Democrats buck Obama on water rule, Timothy Cama, 5/8/15
Bid to block Obama’s water rule falls short, Timothy Cama, 11/3/15

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Wetland Regulation Related Court Decisions…Circuit What? Where?

10/28/2015

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In this posting I wanted to review the U.S. court system structure to clarify the where of current decisions being made in certain courts.

As you may (or may not) remember from your high school civics class, Article III of the Constitution invests the judicial power of the United States in the federal court system. Article III, Section 1 specifically creates the U.S. Supreme Court and gives Congress the authority to create the lower federal courts. Congress has used this power to establish 13 U.S. Courts of Appeals, and 94 U.S. District Courts.

As seen in the flowchart below, the course of a case is decided by which laws (federal, state, local, etc.) are involved. Since we’re currently watching the progress of the Clean Water Rule, I’ve highlighted the course involving federal laws. This diagram also explains how past wetland regulation decisions ended up in the Supreme Court. Keep in mind, the Supreme Court can decide if they will review a lower court decision or not; and certainly not all appeals to the Supreme Court are reviewed. If two lower courts disagree in their decisions, it is more likely the Supreme Court may step in for a final decision.

Source: http://www.uscourts.gov/

Next, I want to show the geographic boundaries of the 13 U.S. Courts of Appeals, and 94 U.S. District Courts. The U.S. District Courts have jurisdiction over entire states or a state is divided into 2-4 areas (mostly described by direction, i.e. Washington State has two: U.S. District Court for the Eastern District of Washington and U.S. District Court for the Western District of Washington).

You can see the dashed grey boundary lines within the state, if there is more than one U.S. District Court within a state. Also, to point out the last two U.S. Court of Appeals, I circled them in orange and numbered them. The colors of the states (or U.S. territories) show the area of jurisdiction for each numbered U.S. Circuit Court of Appeals. For example, if a court case was originally filed in Michigan (Eastern District or Western District) and an appeal of a court decision is made, it will be reviewed by the 6th U.S. Circuit Court of Appeals. The exception to this occurs if there is no clear and exclusive path established for judicial review.

Source: http://www.uscourts.gov/

The success or failure (depending on your view) of a court case can depend on the location of the original filing, and on the complexity of the issues involved. The Clean Water Act allows challengers to file in any circuit, whereas the Clean Air Act gives the D.C. Circuit jurisdiction over most lawsuits. The Clean Water Act court cases also generally involve property rights issues and definitions of words within the law that make them approachable for judges who are then willing to study and rule on the cases. The Clean Air Act is usually more complex than the Clean Water Act which makes it harder for judges to fully comprehend in the short time they have to decide a case – therefore in those instances concerning the Clean Air Act, the judges are more likely to accept EPA’s expertise and legal argument.

Now we've a more complete picture of the courts involved in the legal wranglings of the Clean Water Rule.

-JMB

Sources:
http://www.uscourts.gov/
http://www.eenews.net/stories/1060004942
SUPREME COURT: Big wins elusive for EPA in Clean Water Act showdowns, by Jeremy P Jacobs, E&E reporter, Greenwire: Wednesday, August 27, 2014

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The Clean Water Rule: Definition of Waters of the United States Final Rule

10/13/2015

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Much has been said in the news lately about the Clean Water Rule. Some of what is said in the media, appears to me, to be misinformed and I thought in this blog article I would try to clarify some of the details of the Clean Water Rule, as succinctly as possible.

The original 297 page proposed Clean Water Rule was issued in April 2014. Since that time, the EPA and Corps of Engineers have received over one million public comments. Reflecting public comments, the Final Rule was informally issued

May 27, 2015, and then published in the Federal Register on June 28, 2015, to become effective on August 28, 2015. Numerous court cases were filed against the EPA and Corps of Engineers. A nationwide court-ordered stay was given on October 9, 2015, by U.S. Court of Appeals for the 6th Circuit (circuit court with jurisdiction over Michigan, Ohio, Kentucky, and Tennessee). The nationwide stay means that the prior regulations are in effect for making jurisdictional determinations or taking other actions based on definitions of “waters of the U.S” (WOTUS).

In a “nutshell”, the Clean Water Rule defines eight waters of the United States categories, and clarifies the definitions of categories 5 through 8.

Clean Water Rule’s 8 WOTUS Categories:
1. Traditional Navigable Waters*
2. Interstate Waters and Wetlands*
3. Territorial Seas*
4. Impoundments of WOTUS*
5. Tributaries to 1-3 (requires both OHWM** & bed/banks)
6. Adjacent Waters to 1-5
7. Similarly Situated Waters with significant nexus
i. Prairie potholes (upper Midwest)
ii. Carolina Bays and Delmarva bays (Atlantic coastal plain)
iii. Pocosins (Central Atlantic coastal plain)
iv. Western vernal pools (California)
v. Texas coastal prairie wetlands (Texas gulf coast)
8. Case-Specific Waters with significant nexus
i. Within 100-year floodplain, but > 1,500’ from OHWM
ii. Within 4,000’ of OHWM or High Tide Line

The Clean Water Rule attempts to reflect the best current science; align with the past Supreme Court decisions; rely on agency experience and expertise; reflect public input and comments; and protect public health, the economy, and the environment. Another potential benefit from this rule is the standardization among Corps of Engineers district offices in the administration of the Clean Water Act, with the additional clarification of these waters of the U.S. definitions.

What is NOT considered “waters of the United States” are waste treatment systems; prior converted cropland; artificially irrigated areas, swimming pools, reflecting pools, & ornamental waters constructed in dry land; man-made lakes/ponds constructed in dry land; water-filled depressions incidental to construction & mining; erosional features – gullies, rills, non-wetland swales; lawfully constructed grassed waterways; puddles; groundwater; stormwater control features constructed in dry land; wastewater recycling structures constructed in dry land; and certain flow-defined ditches.

Now, we wait on the court system… There is some debate if the 6th Circuit has the authority to declare a NATIONWIDE stay of this rule.

-JMB

*No change from previous regulations.

** Ordinary High Water Mark – that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, presence of litter and debris or other appropriate means

Source:
Federal Register / Vol. 80, No. 124 / Monday, June 29, 2015 / Rules, Effective August 28, 2015

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The 6th Circuit Speaks: The Clean Water Rule Court Cases Move Forward

The Clean Water Rule: Senate Joint Resolution 22, update...

The Clean Water Rule - January 2016 Seminar

Criticisms of the Clean Water Rule

The Clean Water Rule: Senate Joint Resolution 22

Federal Water Quality Protection Act

Wetland Regulation Related Court Decisions…Circuit What? Where?

The Clean Water Rule: Definition of Waters of the United States Final Rule

Wetland Regulations 101: More on the CWR

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