Wetland Regulations 101: Future

The Clean Water Rule - January 2016 Seminar

1/27/2016

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 - January 2016 Seminar

Criticisms of the Clean Water Rule

Wetland Regulations 101: More on the CWR

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The Clean Water Rule - January 2016 Seminar

Criticisms of the Clean Water Rule﻿

Wetland Regulations 101: More on the CWR

Archives

Criticisms of the Clean Water Rule