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Trump-Era Water Rule’s Replacement Seen as More Legally Airtight

Nov. 24, 2021, 11:00 AM

The EPA’s proposed wetlands rule intended to erase a Trump-era regulation is so legally and scientifically robust that—if finalized—it could be the last word from the Biden administration defining which wetlands are eligible for federal protection, water lawyers say.

The stakes are high: Which waters and wetlands are federally protected can slow or curtail commercial and energy development nationwidewhile helping to improve water quality and aquatic habitat. Each administration since President George W. Bush has expanded or contracted the definition of waters of the United States, or WOTUS,, and the Biden administration is expected to expand it.

“It would not surprise me if this turns out to be the last iteration of WOTUS that the Biden administration produces,” said Dave Owen, an environmental law professor at the University of California-Hastings College of the Law.

The Environmental Protection Agency last week published a 290-page proposal that would revert federal waters and wetlands protections under the Clean Water Act roughly to their status before the Obama administration expanded thedefinition of federal waters in 2015.

Science Builds Legal Case

The move to restore earlier wetlands protections was intended only to be the first step in re-defining WOTUS. The EPA announced in June that after the pre-2015 rule is finalized, it “anticipates” it would start over and write yet another definition.

The EPA and the Army Corps of Engineers are still committed to that plan, EPA spokesman Robert Daguillard said Tuesday.

“The agencies anticipate developing a separate rule-making process that would build upon this regulatory foundation,” he said.

But the EPA expended so much effort building a legal and scientific foundation for pre-2015 wetlands protections, the agency is unlikely to follow through with the anticipated new WOTUS definition, attorneys say.

“I do think the more EPA invests itself in this rule, the harder it’s going to be to have a second rule that’s substantially different than this rule,” said Kevin Minoli, a partner at Alston & Bird LLP who leads the firm’s Environment, Land Use & Natural Resources Group in Washington, D.C.

“The more you invest into building the scientific record to support this outcome, it becomes harder and less likely that there’s going to be a completely different outcome that is going to be able to be supported by the science in the same way,” said Minoli, who was principal deputy general counsel at the EPA during the Obama administration.

With the latest proposal, the EPA bolstered all the science that supported the pre-2015 rule, said Larry Liebesman, a former Justice Department environmental lawyer in the Carter and Reagan administrations who is now a senior adviser at the environmental and water permitting firm of Dawson & Associates.

“If they build the science, they build on the legal analysis,” he said.

Rapanos Codified

The new rule offers a greater basis for a federal waters definition in part by incorporating 2006 Supreme Court guidance for implementing the EPA’s original 1986 WOTUS rule in Rapanos v. U.S., Liebesman said.

In Rapanos, the justices issued five different opinions. Following a precedent that says the narrowest grounds of a fractured Supreme Court decision are binding, the EPA adopted the interpretation laid out in a concurrence by then-Justice Anthony Kennedy. The concurrence said the Clean Water Act applies to wetlands with a “significant nexus” to large bodies of water.

At the time, there wasn’t a direct scientific basis for the idea of “significant nexus,” Owen said.

“The scientific community decided, ‘Let’s figure out what a significant nexus is and what has a significant nexus to navigable-in-fact waters’,” resulting in a “huge outpouring of research,” he said.

With the proposed new rule, the EPA is adding that research to the record and is saying “significant nexus” means something scientifically and is well-grounded in the goals of the Clean Water Act, Owen said.

EPA guidance says that tributary streams or nearby wetlands have a significant nexus with navigable waters when the tributaries have an effect on the waters’ “chemical, physical and biological integrity.”

Thought it’s unlikely EPA will start from scratch again during the Biden administration, the EPA could build upon the scientific and legal record to add more clarity to federal waters jurisdiction, Minoli said.

EPA Administrator Michael Regan said in a Nov. 10 interview in Glasgow that the agency wants to ensure that farmers, builders and other stakeholders in Republican states have their voices heard as the agency writes a new WOTUS rule.

Legal Challenges Await

Owen said he expects the EPA to consider the political reality in federal courts before proceeding with an entirely new WOTUS rule.

“The calculation would be if you want expansive water quality protection and you know you’re dealing with very hostile courts, then the best chance of having a lasting rule may be to go with the Reagan rule rather than the Biden rule,” he said.

Court hostility toward the expansive Obama-era WOTUS definition was a signal that the Biden administration “probably can’t provide much more protection than it was already providing pre-2015,” he said.

Regardless of the next steps the EPA and Army Corps take in re-defining WOTUS, legal challenges are inevitable, mainly by the Farm Bureau and other developers that supported the Trump-era rule, the lawyers said.

“I would predict that within two to three weeks of promulgation, some judge somewhere will issue a preliminary injunction nationwide,” Owen said. “I don’t think that decision will be grounded in careful legal reasoning.”

The Farm Bureau may consider legal action if the proposed rule is finalized as proposed, said Courtney Briggs, the bureau’s senior director of congressional relations. It would hurt farmers in part because it would require them to obtain more permits for work affecting wetlands, she said.

“Here we go again with more litigation and less certainty for the regulated community—and that’s where we are,” she said.

—With assistance from Ellen Gilmer.

To contact the reporter on this story: Bobby Magill at bmagill@bloombergindustry.com

To contact the editor responsible for this story: Chuck McCutcheon at cmccutcheon@bloombergindustry.com

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