Waters of the U.S. Where Do We Go From Here? Samuel L. Brown - - PowerPoint PPT Presentation

“Waters of the U.S.” Where Do We Go From Here?

Samuel L. Brown Hunton & Williams LLP

Sunday, February 21, 2016

“Waters of the United States”

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• “Waters of the United States” (WOTUS) is a

fundamental undefined statutory term in the federal Clean Water Act. − Discharges to surface waters that are WOTUS require permits from EPA or States − Discharges into wetlands that are WOTUS require permits from U.S. Army Corps − WOTUS must meet water quality standards − Citizens and the Government may sue to enforce the CWA if a feature is a WOTUS

“Waters of the United States”

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• On June 29, 2015, EPA and the U.S. Army Corps

issued a final rule to redefine the scope of WOTUS and those waters subject to regulation under the

• CWA. See 80 Fed. Reg. 37,054 (Jun. 29, 2015).
• Why the need for the rule?

− Supreme Court Decisions

• E.g., Rapanos v. U.S. (2006) (a 4-1-4 decision)

− EPA & U.S. Army Corps Guidance (2008) − Implementation and Resource Concerns

The Final Rule: What’s In?

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• 1. Traditional navigable waters; “float a boat”
• 2. Interstate waters; cross/form state boundary
• 3. Territorial seas; the ocean
• 4. Impoundments of 1-3, 5; water behind a dam
• 5. All tributaries of 1-4
• 6. All “waters” (including wetlands) adjacent to

waters in 1-5

• 7. Other waters that have a fact-specific

significant nexus to waters in 1-3

Exclusions: What’s Out?

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• Waste treatment systems
• Certain ditches
• Certain artificial water features:

− Artificially irrigated areas that would revert to dry land should application of water to the area cease − Artificial, constructed lakes and ponds created in dry land − Artificial reflecting pools or swimming pools created in dry land

• Small ornamental waters created in dry land
• Water-filled depressions created in dry land incidental to mining or

construction activity, including pits excavated for obtaining fill, sand

• r gravel that fill with water
• Erosional features that do not meet the definition of tributary
• Groundwater
• Stormwater control features constructed to convey, treat, or store

stormwater that are created in dry land

Roadside / Agricultural Ditches

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Storm Sewer Systems

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Tributary or Erosional Feature?

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• Drainage with bed, bank,

and OHWM that contributes flow to other covered waters can be a tributary.

Tributary or Erosional Feature?

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WOTUS Final Rule: What’s Next?

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Challenges to Final Rule

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• Circuit Court:

− 19 petitions for review in 8 different U.S. Circuit Courts of Appeal

• District Court:

− 14 complaints filed in 11 different U.S. District Courts

• Wide range of arguments, e.g., Constitutional,

procedural, substantive, etc. − States, Industry, and eNGOs

• Initial Legal Question: Where should the final

rule be challenged—Circuit or District Court?

Challenges to Final Rule

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• Sixth Circuit:

− Consolidation of Circuit Court petitions in Sixth Circuit − On motion, issued a nationwide stay of final rule − Dec. 8, oral arguments on the issue of subject matter jurisdiction

• States/Industry have the better statutory argument
• Sixth Circuit will be conscious of practical impact

− Decision on subject matter jurisdiction soon!

Challenges to Final Rule

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• District Courts:

− Denial of the motion by U.S. to consolidate complaints in D.D.C. − Motions for a preliminary injunction filed in 3 District Courts:

• Granted in D.N.D.—final rule stayed in 13 states
• Denied in S.D. Ga. and N.D.W.V.
• Proceedings are stayed in other District Courts

− Eleventh Circuit appeal of S.D. Ga. Decision

• Oral argument postponed until after Sixth Circuit

Challenges to Final Rule

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• Question: What happens if Sixth Circuit finds it

has jurisdiction?

• Question: What happens if the Sixth Circuit

doesn’t? − Nightmare scenario for the United States

• Question: What about the Eleventh Circuit

appeal—what does it mean and what is its relevance?

• The Impact of the Passing of Justice Scalia

− Timing of his replacement − Shift in power on the Supreme Court

Congress: Legislative Fix?

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• House: HR 1732,

− Requires EPA to withdraw final rule and re- propose a new rule. Passed the House.

• Senate: S1140,

− Requires EPA to withdraw final rule and establishes guidelines for EPA on how it should rewrite the rule by Dec. 2016. − Nov. 3, bill defeated 57 (4 Ds) – 41, filibuster

Congress: Legislative Fix?

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• Congressional Review Act

− The CRA allows Congress to pass a joint resolution to overturn regulations, majority vote, i.e., do not need 60 votes to overcome a filibuster. − Nov. 3, a resolution to withdraw the final rule passed the Senate 55 (3 Ds) – 43; on Jan. 13 the resolution passed the House 253-166. − White House vetoed the resolution. − Jan. 21, the Senate was unable to overcome the veto, need 67 votes, 52 (3 Ds) – 40.

Congress: Legislative Fix?

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• Appropriations Legislation

− Riders were included in the Senate and House bills for government funding for 2016 to prevent EPA from spending money to implement the rule. − Largely removed before sent to White House and did not setup a showdown.

• Letter from 11 Senate Democrats to EPA on the

need for implementation assistance and clearer guidance.

Implementation

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• All interested parties: EPA, Corps, States,

Congress, regulated entities, and environmental

• rganizations recognize that what comes next in

terms of implementation and associated guidance will be critical to making the rule work.

• Down the road—what to look out for:

− First round of as applied District Court litigation − Interpretation of the exclusions − Maintaining national consistency in EPA Regions and Corps Districts

Election 2016

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• The next President could voluntarily withdraw

the final rule either unprompted or in light of adverse court decisions.

• Potential Supreme Court appointment—will tip

the balance of power on any WOTUS case that reaches the Court.

WOTUS Rulemaking Process

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• “We have received over one million comments,

and 87.1 percent of those comments we have counted so far … are supportive of this rule … [l]et me repeat: 87.1 percent of those one-plus million are supportive of this rule” − Administrator McCarthy, Senate Environment and Public Works Committee, March 2015

• New York Times article on EPA potentially

breaking federal law in promoting the rule.

WOTUS Rulemaking Process

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• The Government Accountability Office (GAO)

issued a legal opinion that found EPA violated the Antideficiency Act by promoting the rule, e.g., Twitter, Thunderclap, links to eNGO websites, requests to contact lawmakers opposed to the rule, and using other social media tools. − Under federal law, EPA is prohibited from using its appropriations for unauthorized publicity or propaganda purposes and for indirect or grassroots lobbying.

• January 21 letter from Senate Republicans to

the Department of Justice.

QUESTIONS?

Samuel Brown Hunton & Williams LLP San Francisco, CA slbrown@hunton.com (415) 975-3714

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