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The Clean Water Rule in the Rearview Mirror, Part 3

7/12/2017

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In this final posting on the series, let’s explore some questions that come to mind when considering all the issues brought up in the previous postings of this series. First, let’s consider the Writ of Certiorari being conducted by the Supreme Court. Remember the petition for Writ of Certiorari involves reviewing the jurisdictional authority of the 6th Circuit Court of Appeals to consolidate all the appellate cases involving the CWR into their court and 
their declaration of the nationwide stay. [A more general explanation of the Supreme Court review is the need for a final legal decision regarding which court (District Courts or Circuit Courts of Appeals) has jurisdiction to legally review cases regarding the Clean Water Act and any associated rules.]
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These questions give a good picture of the potential confusion and uncertainty that may occur if we continue with the legal course set for the CWR litigation. Many issues have been raised from so many perspectives of the petitioners that it will take considerable amounts of time to sort through all the arguments for or against.

With the pending re-codification of the pre-2015 Clean Water Rule WOTUS definitions, it looks like all cases involving the CWR will be moot, once the re-codification is published in the Federal Register. Though as mentioned in yesterday’s ASWM webinar, the jurisdictional question being reviewed by the Supreme Court will STILL need to be answered because any new rulemaking process or result will inevitably be challenged in court.*

Next let’s move onto the questions brought up by the recent executive orders by the new Administration.

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As brought to my attention in yesterday’s webinar, the comment period for step 1 of the re-codification of the pre-2015 CWR (pre-publication DRAFT) appears to be 30 days, which is a very short time period considering the different levels of review that state agencies much go through before final comments are usually submitted to the EPA. As a consultant on these issues, even a 60-day public comment period is hard to meet with competing work day priorities.

Estimates of some were that there is a possibility of a new rule in place by the end of the first quarter of 2018 which is an extraordinarily short amount of time when comparing how long it took for the CWR to become finalized. It was unanimous (from my impression) among those in yesterday’s webinar that it is very important for all interested parties to provide detailed, thoughtful, and specific comments that reflect your point of view – not limiting what or how you comment on the new rule – and potentially reflecting the support of science behind the CWR so that it is in the public record.

A new EPA economic analysis report of the re-codification process was released just last month (June 2017). Clarification of the discussion about economic analysis reports is composed below. **

Congress is getting involved in this process by adding a section (Section 108) to the Energy & Water Appropriations Bill (House Bill 115) that would allow the EPA/DOD to withdraw the CWR without regard to any provision of statute or regulation (pages 12-13 of draft bill dated June 26, 2017/June XX, 2018).

All parties are still in the process of evaluating the effects of the pending re-codification. While the influence “on the ground” is relatively small [essentially WOTUS definition remains the same since the 2008 Rapanos guidance], bigger issues are at stake here: states’ ability and resources to take over the protection, conservation, and restoration wetlands as it appears the current administration is leaning towards [27 states don’t have any dredge & fill program]; fundamental terms that come up repeatedly and we struggle to define in agreement to all, i.e. ditches, relatively permanent waters;  and the enormous amount of effort that was expended in providing for a thorough public and agency review of the proposed regulations which is in danger of being completely ignored by the proposed re-codification of the “status quo” since 2008.

Difficulties will continue in the efforts to transform scientific evidence into governmental regulations that will meet everyone’s standards and expectations. The joys of a democratic government!

Thanks for tuning in!

-JMB


*Mootness: Capable of Repetition, but evading review exception.
Several exceptions exist to the “mootness” argument, but I’ll only mention one which is titled “Capable of repetition, yet evading review.”  A court will likely find that a case is not moot if the plaintiff can potentially be harmed again in the future, even if the plaintiff is not being harmed at the moment the case is heard.  Cases dealing with the jurisdictional authority relating to the Clean Water Act could be an example of this exception.  A court will hear these cases even if the plaintiff is not affected at the moment of the court hearing, because the plaintiff can become affected again in the future.

**Economic Analysis Reports:
1. 2015 EPA Economic Report which provided Cost/Benefit analysis of the CWA, Sections 311, 401, 402, 404 (+). This report was highly criticized based on the quality of the data set used for analysis; no benefits quantified for Sections 311 Compliance, 401 Administration, 404 Stream Mitigation Credits; and some areas of report concentrating solely on one agency’s costs.

2. Economic Analysis for the Proposed Definition of “WOTUS” – Re-codification of Pre-Existing Rules, June 2017. I have not had time to assess this report myself, but those who have said the report excludes a line item for wetland benefits & values in this economic analysis.

3. Miscellaneous other economic analysis reports not to be confused with the above. i.e. Congressional Research Service (CRS) Economic Analysis. Looks like the CRS performs this type of analysis on more than a few government-related issues, besides EPA/DOD environmental rules.

Sources:
Webinar: “What's Next for Clean Water Act Jurisdiction: Maintaining - or Draining - the Swamps? The Future of the Clean Water Rule”, Presented at ASWM’s 2017 Annual State/Tribal/Federal Coordination Meeting - Tuesday, April 11, 2017

Webinar: “What's Next for Clean Water Act Jurisdiction”, Presenters: Jan Goldman-Carter, National Wildlife Federation; Virginia Albrecht, Hunton and Williams, LLP; Roy Gardner, Stetson University, College of Law, Moderated by the Association of State Wetland Managers, Tuesday, July 11, 2017

http://www.rotlaw.com/legal-library/what-is-mootness-in-law-what-is-ripeness/

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The Clean Water Rule in the Rearview Mirror, Part 2

7/7/2017

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​We left off Part 1 of this CWR series with the opening and responsive briefs being filed in the 6th Circuit Court of Appeals in early January 2017. 
​

The litigation in the 6th Circuit was stayed (halted) on January 25, 2017, due to a specific petition request by the National Association of Manufacturers (NAM v. Department of Defense, Docket No. 16-299) to the U.S. Supreme Court. The NAM petitioned for a Writ of Certiorari.
​

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The petition was granted on January 13, 2017 – just one hour after the U.S. Department of Justice filed their responsive briefs. This decision by the Supreme Court to review if the 6th Circuit properly found jurisdiction under
33 USC 1369 (regarding Administrative Procedure and Judicial Review) led to the stay of the 6th Circuit litigation. Why does this matter? Why is it so important to determine if the 6th Circuit has authority over all the combined cases and to issue a nationwide stay of the CWR? Versus the cases being litigated in multiple district courts?

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The importance is due to the differences between the laws governing district courts and the courts of appeals. The statutes of limitations (time limit for filing a lawsuit) is 120 days in courts of appeals versus 6 years in district courts. Also, challenges of actions in a subsequent civil or criminal proceeding for enforcement is different. Courts of appeals actions CANNOT be subsequently challenged in civil or criminal court, while district court actions CAN be subsequently challenged in civil or criminal court.

In the Writ of Certiorari being conducted by the Supreme Court, the brief of petitioner National Association of Manufacturers was filed on April 27, 2017, and the deadline for the respondents to file their brief has been extended to July 28, 2017.
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While this legal process was occurring, other developments have occurred with the entry of the new administration. President Trump signed several executive orders influencing the actions of the EPA and Department of Defense/Corps of Engineers relating to the CWR and definitions of WOTUS*.
  1. Executive Order 13771, Reducing Regulation and Controlling Regulatory Costs, signed January 30, 2017. Commonly referred to as the “2 for 1” EO, it orders that for every one new regulation issued, at least two prior regulations be identified for elimination. Any new costs associated with new regulations are to be offset by elimination of existing costs associated with at least two prior regulations.
  2. Executive Order 13777, Enforcing the Regulatory Reform Agenda, signed February 24, 2017. This EO orders that the head of each agency designate a Regulatory Reform Officer (RRO) to oversee the implementation of regulatory reform initiatives to repeal, replace, or modify regulations that eliminate jobs; regulations that are outdated or unnecessary; regulations that impose costs that exceed benefits; or regulations that create inconsistencies or interfere with regulatory reform.
  3. Executive Order 13778, Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule, signed February 28, 2017. This EO orders the EPA & Department of Defense to review the CWR and publish for notice and comment a proposed rule rescinding or revising the rule. The EO requests that the EPA & DOD consider interpreting the term “navigable waters” in a manner consistent with the opinion of Justice Scalia in Rapanos v. U.S., 547 U.S. 715 (2006).​
​
In response to EO 13778, the EPA announced in the Federal Register (Vol. 82, No. 42/March 6, 2017) its intention to review and rescind or revise the Clean Water Rule and stated that through new rulemaking they will seek to provide greater clarity and regulatory certainty concerning the definition of WOTUS.

Then, the EPA and Department of Defense, Corps of Engineers, released on June 27, 2017, a 42-page pre-publication version of what will be coming out soon in the Federal Register. They addressed EO 13778 in a two-step process. First step, stating they will be re-codifying the regulations (definition of WOTUS) to the definition as it existed BEFORE the 2015 CWR, or what is regarded as the status quo, since the CWR is currently under a nationwide stay. The second step is pursuing notice & comment rulemaking where agencies will conduct a substantive re-evaluation of the definition of WOTUS.  In the 22-page pre-amble, they explain their reasoning and cite legal cases supporting their scope of authority to do it this way. ALSO, they talk about the high potential for confusion and uncertainty developing from the legal complexities in the court system (previously explained here).

Interestingly, the pre-publication document makes it clear that the EPA and Corps of Engineers are NOT restricting States from protecting waters regulated under State law more broadly than the federal law definition and refer to Section 101(b) of the Clean Water Act as the second policy goal of the CWA - "to preserve the State's primary responsibility & right to prevent, reduce & eliminate pollution" and to "more fully consider the State discretion to protect waters that are not subject to CWA jurisdiction.”
​
Essentially, the way the waters have been regulated will remain the same as since the 2008 guidance and we’re repeating the rule-making process all over again. If the rule-making process is going to be dependent on science it is a little hard to see how we are going to get a different outcome from what was previously developed in the CWR. Several other questions remain and will be covered in Part 3 of The Clean Water Rule in the Rearview Mirror.

Stay tuned!

-JMB

*WOTUS - Waters of the United States

Sources:
Pre-publication version of 33 USC Part 328, 40 CFR, Parts 10, 112, 116, 117, 122, 230, 232, 300, 302, and 401, Definition of "Waters of the United States" - Recodification of Pre-Existing Rules, Released June 27, 2017

Webinar: “What's Next for Clean Water Act Jurisdiction: Maintaining - or Draining - the Swamps? The Future of the Clean Water Rule”, Presented at ASWM’s 2017 Annual State/Tribal/Federal Coordination Meeting - Tuesday, April 11, 2017

www.scotusblog.com Docket No. 16-299 National Association of Manufacturers v. Department of Defense

http://legal-dictionary.thefreedictionary.com
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The Clean Water Rule in the Rearview Mirror, Part 1

6/20/2017

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To better understand the latest developments regarding the Clean Water Rule (CWR), let’s look at a brief summary of its development and current status.

The rule-making process for the CWR was started in response to requests by the public to replace the 2008 guidance (post-Rapanos 2006 court case instruction on how to implement the court decision) with clearer regulations that would provide certainty on the definition of waters protected by the Clean Water Act. And the purpose of the Clean Water Rule was “to provide a simpler, clearer and more consistent approach to determining jurisdictional status of waters, based upon science, the agencies’ expertise and experience, and Supreme Court decisions.”
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The rule-making process was a two-year nationwide effort which garnered over 1 million public comments, and during the process, the EPA developed two informative reports: the EPA Economic Report (looked at the administrative costs to the Corps of Engineers in implementing the new rule) and
the EPA Connectivity Report (a review of 1,200 peer-reviewed publications to scientifically determine the connectivity of water between streams and wetlands in a watershed).

The rule produced a definition of WOTUS in three basic categories:
   1. waters that are jurisdictional in all instances,
   2. waters that require case-by-case significant nexus analysis*, and
   3. waters with regulatory exclusions.


​​Once the rule was published**, plaintiffs immediately filed suits against the EPA and Department of Defense. These plaintiffs were businesses, states, and environmental groups. Of the 18 district court complaints, the U.S. Department of Justice made the unusual motion to consolidate all complaints, but the motion was denied on October 13, 2015, by the Judicial Panel on Multidistrict Litigation (composed of 9 district court judges). Most of the complaints were dismissed. One court, the North Dakota District Court, issued a Preliminary Injunction (stay) which eventually only applied to the 13 states that were plaintiffs in that district court case. 

In the U.S. courts of appeals, the same 100 petitioners filed suits against the EPA and Department of Defense. By statute (law), these cases were consolidated in the 6th Circuit Court of Appeals*** and the 6th Circuit issued a CWR stay on October 9, 2015. The 6th Circuit also ruled that it had the jurisdictional authority 
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to declare the nationwide stay in a highly controversial and fractured decision (1:1:1) on February 22, 2016. A request for rehearing the jurisdictional determination of the 6th Circuit by all the judges of the court (called an “en banc” review) was denied on April 21, 2016.

​The petitioners of the consolidated cases in the 6th Circuit were divided into four major groups: 2 different environmental groups, 1 business group, and 1 group containing all the petitioning states. Four sets of opening briefs challenging the merits of the CWR were submitted to the 6th Circuit Court of Appeals on November 1, 2016 (292 pages). The Department of Justice answered with a 245-page**** responsive brief on January 13, 2017.

What happened next gets even more interesting! And, we are approaching the dates of the change in the Executive Branch of the United States – the Trump Administration (inaugurated January 20, 2017).

Stay tuned for part 2 of The Clean Water Rule in the Rearview Mirror.
 
-JMB
 
*Significant nexus analysis is determined by evaluating if any one of nine different aquatic          functions are being significantly affected.
**For more details on the actual rule, see Wetlands Regulations 101 More on the CWR - a blog about the CWR  details.
***Tennessee, Kentucky, Ohio, and Michigan comprise the 6th Circuit Court of Appeals.
****This very large brief size would usually represent about 5 separate cases of information.


Sources:
The Clean Water Rule Workshop presented at the Society of Wetland Scientists, South Central Chapter meeting, Memphis, TN, October 8, 2015.

Webinar: “What's Next for Clean Water Act Jurisdiction: Maintaining - or Draining - the Swamps? The Future of the Clean Water Rule”, Presented at ASWM’s 2017 Annual State/Tribal/Federal Coordination Meeting - Tuesday, April 11, 2017.

www.scotusblog.com Docket No. 16-299 National Association of Manufacturers v. Department of Defense

http://legal-dictionary.thefreedictionary.com
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    Wetland Regulations 101:
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