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” • “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 2

“Waters of the United States” • 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 3

The Final Rule: What’s In? 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 4

Exclusions: What’s Out? • 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 or 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 5

Roadside / Agricultural Ditches 6

Storm Sewer Systems 7

Tributary or Erosional Feature? • Drainage with bed, bank, and OHWM that contributes flow to other covered waters can be a tributary. 8

Tributary or Erosional Feature? 9

WOTUS Final Rule: What’s Next ? 10

Challenges to Final Rule • 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? 11

Challenges to Final Rule • 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! 12

Challenges to Final Rule • 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 13

Challenges to Final Rule • 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 14

Congress: Legislative Fix? • 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 15

Congress: Legislative Fix? • 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. 16

Congress: Legislative Fix? • 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. 17

Implementation • All interested parties: EPA, Corps, States, Congress, regulated entities, and environmental organizations 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 18

Election 2016 • 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. 19

WOTUS Rulemaking Process • “ 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. 20

WOTUS Rulemaking Process • 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. 21

QUESTIONS? Samuel Brown Hunton & Williams LLP San Francisco, CA slbrown@hunton.com (415) 975-3714 22