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/

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

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.