Waters of the U.S. ( WOTUS ) Li6ga6on and Rule Update

Transcription

1 Waters of the U.S. ( WOTUS ) Li6ga6on and Rule Update August 25, 2016, Georgia Environmental Conference Waters, Waters Everywhere Kazmarek Mowrey Cloud Laseter LLP 1

2 Clean Water Act The CWA confers federal authority over navigable waters, which is defined as waters of the United States, including the territorial seas. 33 U.S.C. 1362(7) Prohibits certain discharges without permits or other measures 2

3 History They ve Tried This Before Many Times 3

4 History 1974 (2 years ayer the CWA s enactment) USACE (authority only over Sec[on 404) defined navigable waters to mean those waters of the United States which are subject to the ebb and flow of the [de, and/or are presently, or have been in the past, or may be in the future suscep[ble for use for purposes of interstate or foreign commerce. 33 C.F.R (d)(1). USACE further clarified, It is the water body s capability of use by the public for purposes of transporta[on or commerce which is the determina[ve factor. 33 C.F.R (e)(1). 4

5 History In 1975, USACE issued interim final regula[ons expanding the scope of waters of the United States to include both tributaries of navigable waters and wetlands adjacent to tradi[onal navigable waters. 5

6 History First of the cases United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) USACE sued landowner to enjoin from filling wetlands Court found USACE could regulate wetlands adjacent to navigable waters, largely because of Congress s inac[on

7 History In 1977, Congress had revised the CWA and hotly debated the new USACE regula[ons. BUT, did not make any significant changes to the applicable defini[ons, and even included a reference to wetlands in Sec[on 404, sugges[ng acquiescence to the new USACE defini[on.

8 History Migratory Bird Rule, 51 Fed. Reg. 41,217 (Nov. 13, 1986) and 53 Fed. Reg. 20,765 (Jun. 6, 1988) Expands federal jurisdic[on to waters serving as habitat for migratory birds or endangered species or that irrigated crop lands.

9 History Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) ( SWANCC ) Municipali[es sued USACE over its exercise of jurisdic[on over some sand and gravel pits they wanted to use for disposal Supreme Court found these regula[ons exceeded USACE s authority under the CWA and encroached on tradi[onal state power. Supreme Court found no indica[on that Congress intended for the CWA to invoke[] the outer limits of Congress power. 531 U.S. at Instead, Congress intended to exert its commerce power over naviga[on. à Waters at issue must be [ed to navigable waters.

10 History In 2002, EPA promulgated a new expanded defini[on of navigable waters in its revisions to regula[ons applicable to 301 of the CWA prohibi[ng the discharge of any pollutant. See 33 U.S.C. 1311(a) 40 C.F.R Specifically, the rule addressed when spill preven[on, control and counter- measure ( SPCC ) plans are needed Bears many similari[es to the convoluted defini[on EPA promulgated last year, excluding the significant nexus component 10

11 History In par[cular, this category was added: All other waters such as intrastate lakes, rivers, streams (including intermilent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degrada[on, or destruc[on of which could affect interstate or foreign commerce 2002 SPCC Rule, 40 C.F.R (1)(iii) 11

12 History Am. Petroleum Inst. v. Johnson, 541 F. Supp. 2d 165 (D.D.C. 2008) Industry group challenged rule under the APA and won SWANCC had been issued a year prior and EPA did not reference it anywhere suggests EPA did not consider it The CWA was not intended to reach the outer limits of the Commerce Clause (EPA agreed), and this defini[on appeared to do that by extending federal control to waters not sufficiently [ed to navigable waters. 12

13 History Rapanos v. United States, 547 U.S. 715 (2006) Two consolidated cases One by government against landowners for filling wetlands without a permit One by landowners whose fill permits were denied 13

14 History Rapanos v. U.S. Scalia issued a plurality opinion wetlands are only jurisdic[onal if have a con[nuous surface connec[on with a navigable water The wetlands here had no such connec[on Kennedy issued a concurrence wetlands are only jurisdic[onal if they have a significant nexus with a navigable water

15 History Rapanos (Kennedy, cont d): On the issue of whether a wetland adjacent to a tributary can be jurisdic[onal, USACE must consider whether the wetland and tributary significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as navigable Tributary itself must be significant ( ordinary high water mark is not enough)

16 History Numerous guidance documents. Frustra[on on all sides. Calls for a clear rule. EPA starts working on that à Proposed rule, Public Comments 16

17 The WOTUS Rule The WOTUS Rule expands federal jurisdic[on to cover five categories of waters automa[cally: (i) All waters which are currently used, were used in the past, or may be suscep[ble to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the [de; (ii) All interstate waters, including interstate wetlands; (iii) The territorial seas; (iv) All impoundments of waters otherwise iden[fied as waters of the United States under this sec[on; (v) All tributaries. 17

18 The WOTUS Rule Plus, all waters adjacent to one of those waters, including wetlands, ponds, lakes, oxbows, impoundments, and similar waters Plus, certain waters if they have a significant nexus with an interstate commerce water, interstate water or territorial sea: prairie potholes, Carolina bays and Delmarva bays, pocosins, Western vernal pools and Texas coastal prairie wetlands Waters within the 100- year floodplain or within 4,000 feet

19 Key Legal Challenges Defini[ons violate Rapanos and other judicial precedent Commerce Clause, 10 th Amendment Procedural Challenges: No[ce- and- comment Decision not to prepare an EIS An[- Lobbying Act Others (Regulatory Flexibility Act (small businesses); Unfunded Mandates Reform Act; Execu[ve Orders) 19

20 Key Legal Challenges Tributary Defines tributary as a water with a bed and banks and high water mark, even if it is interrupted 20

21 Key Legal Challenges In Rapanos, Kennedy cri[cized the previous defini[on (feeds into a tradi[onal navigable water and possesses an ordinary high- water mark): the breadth of this standard which seems to leave wide room for regula[on of drains, ditches, and streams remote from any navigable- in- fact water and carrying only minor water volumes toward it precludes its adop[on as the determina[ve measure Id., at

22 Key Legal Challenges Defini[on of tributary as described in the Preamble to the WOTUS Rule to include alleged waterways detected by desktop tools, remote sensing programs, hydrologic modeling, and other tools designed to es[mate whether a high water mark might be currently or even historically present 22

23 Key Legal Challenges Defini[ons violate Rapanos and other judicial precedent Commerce Clause, 10 th Amendment Procedural Challenges: No[ce- and- comment (distance limitagons in definigons of adjacency and significant nexus) Decision not to prepare an EIS An[- Lobbying Act Others (Regulatory Flexibility Act (small businesses); Unfunded Mandates Reform Act; Execu[ve Orders) 23

24 Jurisdic6onal Issues District Court or Circuit Court Ques[on is whether the WOTUS Rule falls within Clean Water Act s judicial review provision, 509(b) (33 USCS 1369(b)). 509(b)(1)(E) ( approving or promulga[ng any effluent limita[on or other limita[on under sec[on 301 [effluent limita[ons], 302 [Water quality related effluent limita[ons], 306 [Na[onal standards of performance], or 405 [Disposal or use of sewage sludge] ) 24

25 Jurisdic6onal Issues Lawsuits filed in district and circuit courts across the country 32 states challenging the rule numerous companies and industry groups public interest groups on both sides Circuit court cases consolidated in the 6 th Circuit. District court cases are mostly stayed pending the circuit court process. 25

26 6 th Circuit Mo[on to Stay Standard: (1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in gran[ng the stay. Mich. CoaliGon of RadioacGve Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991). 26

27 6 th Circuit Granted Stay we conclude that pe[[oners have demonstrated a substan[al possibility of success on the merits of their claims. Pe[[oners first claim that the Rule s treatment of tributaries, adjacent waters, and waters having a significant nexus to navigable waters is at odds with the Supreme Court s ruling in Rapanos, it is far from clear that the new Rule s distance limita[ons are harmonious with the instruc[on. Moreover, the rulemaking process by which the distance limita[ons were adopted is facially suspect. Pe[[oners contend the proposed rule that was published, on which interested persons were invited to comment, did not include any proposed distance limita[ons in its use of terms like adjacent waters and significant nexus. 27

28 6 th Circuit Granted Stay There is no compelling showing that any of the pe[[oners will suffer immediate irreparable harm if a stay is not issued But neither is there any indica[on that the integrity of the na[on s waters will suffer imminent injury if the new scheme is not immediately implemented and enforced. 28

29 6 th Circuit Jurisdic[onal Mo[ons Mo[ons for the 6 th Circuit to clarify jurisdic[on Panel accepted jurisdic[on Denied en banc review 29

30 6 th Circuit Record Dispute EPA omiled a variety of documents from the record, most significantly the Army Corps of Engineers memos. Briefing concluded July 29, Ruling expected by the end of August. 30

31 6 th Circuit Merits Briefing First briefs due on September 30, Final briefs due February 17, Oral Arguments will then be scheduled. 31

32 Army Corps v. Hawkes, 136 S.Ct (2016) Facts: Hawkes was engaged in peat mining ac[vi[es and wanted to mine the peat in a wetland Sought a jurisdic[onal determina[on of whether the wetland was jurisdic[onal.

33 Hawkes Decision Facts: Corps issued an approved JD sta[ng that the property contained water of the United States because its wetlands had a significant nexus to the Red River of the North, located some 120 miles away. Hawkes administra[vely appealed, and the JD was ul[mately reaffirmed. Hawkes appealed to the district court, which found the JD was not final agency ac[on, and the 8th Circuit reversed.

34 Hawkes Decision Issue: Whether a jurisdic[onal determina[on is a final agency ac[on reviewable under the APA. Three- pronged analysis: 1. Is a jurisdic[onal determina[on a final agency ac[on, i.e. is it the final consumma[on of the agency s decision- making process, or might the agency s decision change through later steps in the process? 2. Does the jurisdic[onal determina[on determine the par[es rights or obliga[ons or have legal consequences? 3. Are there alterna[ves to APA review in court to obtain review? BenneN v. Spear, 520 U.S. 154 (1997)

35 Hawkes Decision The Supreme Court upheld the 8th Circuit s decision 8-0. Jus[ce Roberts authored the majority opinion. Court found a jurisdic[onal determina[on is a final agency ac[on Has direct legal consequences No alterna[ves to filing suit in court

36 Hawkes Decision Kennedy concurred, joined by Thomas and Alito: Agreed en[rely with the majority, but wanted to concur solely to point out that, based on the Government s representa[ons in this case, the reach and systemic consequences of the Clean Water Act remain a cause for concern. For example, without the jurisdic[onal determina[on process and judicial review: the Act s ominous reach would again be unchecked by the limited relief the Court allows today. The Act, con[nues to raise troubling ques[ons regarding the Government s power to cast doubt on the full use and enjoyment of private property throughout the Na[on.

37 Hawkes Decision Kennedy also suggested during oral argument that the Clean Water Act is uncons[tu[onally vague. Regrets over his significant nexus framework that started this en[re process??? Status of Supreme Court unclear.