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Trump’s Navigable Waters Rule Might Save the Clean Water Act

Oct. 7, 2022, 8:00 AM

When it comes to the US Supreme Court interpreting the meaning of “waters of the United States,” nothing should surprise people anymore.

And yet, who would have predicted that the Trump administration’s navigable waters protection rule would emerge from the oral arguments in Sackett v. EPA as the lynchpin that may preserve Clean Water Act jurisdiction over adjacent wetlands.

The Sacketts asked the Supreme Court to conclude that the Clean Water Act only covers those wetlands that are physically touching a navigable-in-fact body of water, arguing that their preferred interpretation was the only plausible one.

But Chief Justice John Roberts jumped in over his colleagues and stated, “I’m not sure that’s right.”

To demonstrate that two things did not need to be touching in order to be adjacent, Roberts also asked whether train tracks were appropriately considered to be adjacent to a train station even though the two did not touch.

It was clear that the petitioners’ case had gone off the tracks almost as soon as it had started.

Justices Appear to Destroy Case

Meanwhile, Justices Sonia Sotomayor and Brett Kavanaugh turned to the navigable waters protection rule to show that the Sacketts’ narrow reading was, in fact, implausible.

Sotomayor noted that even the Trump administration found that the Clean Water Act covered at least some wetlands that did not physically a touch covered water.

Kavanaugh interrupted the Sacketts’ counsel to point out that the government had “explicitly” made it clear in 1977 that adjacent wetlands included wetlands separated by natural or artificial berms, barriers, and the like—and that “every administration since 1977" had agreed with that definition. “[W]hy wouldn’t a wetland separated by a berm, dune, levy, or dike be covered, contrary to what the last 45 years have suggested?,” he asked.

Unbreakable Four-Decade Chain

The unbroken 45-year chain of seven presidential administrations—three Democrat and four Republican—appears to have sunk the Sacketts’ proffered test. The Trump administration, widely known for reinterpreting the law to narrow the EPA’s reach, proved to be a very important link in that chain.

The administration had considered this very question in the navigable waters protection rule, but decided not to limit jurisdiction to wetlands that physically touch a covered body of water. The fact that the Trump administration had considered and rejected the interpretation made it nearly impossible for the Sacketts to convince the court that their reading was the one Congress intended.

And yet it almost did not happen that way.

When the Trump administration first proposed the navigable waters protection rule, the definition of “adjacent wetlands” was almost as narrow as the one put forward by the Sacketts, covering only wetlands that touch or have a direct hydrological surface connection to other “waters of the United States” in a typical year.

When the government published the final rule 14 months later, however, the rule adopted a much broader definition of adjacent wetlands.

The final definition in the rule included wetlands that do not physically touch covered water, so long as the reason the wetland was separated from the water was a natural feature, such as a natural berm, dune, or dike, or an artificial structure or feature, such as a levy or dam, provided that there was still a surface hydrological connection between the wetland and the water.

The preamble to the final rule was clear: “The agencies do not view the scope of their authority as limited to wetlands that abut traditional navigable waters, nor do they view their authorities as limited to wetlands that physically touch other jurisdictional waters.”

The government attributed its changed position to its consideration of public comment. The final rule, the preamble explained, “enhanced the final definition to improve its clarity and ease of implementation, and to include additional wetlands that, upon further consideration, the agencies conclude should be subject to federal jurisdiction.”

While there is no doubt that commenters had advocated for a broader definition of adjacent wetlands than what had been proposed, it is unlikely that those comments alone would have led the administration to change its mind. The real impetus for the change would have come from the inside.

Credit to Career Attorneys, Scientists

If the Supreme Court affirms that the Clean Water Act covers wetlands beyond those that physically touch a jurisdictional body of water, the credit should go to the career attorneys, scientists, and program staff that were able to demonstrate to the political leadership that the rule’s proposed definition was not supportable by science or law.

Those employees could have easily checked out. No one would have blamed them for not trying to improve the proposed rule, and many of them likely faced questions for their efforts.

At the time the navigable waters protection rule was finalized, the changed definition of “adjacent wetlands” was largely overlooked, as most attention was focused on the provisions of the rule that had significantly reduced the Clean Water Act jurisdiction.

If the Supreme Court rules in the government’s favor, the role of the career staff at the EPA and the Army Corps of Engineers in making that outcome possible should not be overlooked again.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Author Information

Kevin S. Minoli is a partner at Alston & Bird in Washington, D.C., where he heads the Environment, Land Use & Natural Resources group and is a member of the firm’s Covid-19 Response & Relief team. He formerly served as the acting general counsel and principal deputy general counsel at the EPA.