Trump Administration Steps Down from Wetlands Regulation While California Steps Up
With much fanfare from the Trump administration, and much consternation from environmental groups and scientists, new rules intended to clarify and roll back federal regulation of waters and wetlands under the Clean Water Act are slated to go into effect this April. But significant doubt remains whether those new rules will make much practical difference in the field, at least in some states like California. For one, the rules remain vague in important respects, and arguably still regulate features that at least a plurality of the U.S. Supreme Court has said cannot be federally regulated under the Act. For another, California, at the state level, is already trying to fill any gaps the new rules succeed in opening up at the federal level, though its efforts are facing significant challenges in multiple court cases. Additional clarity on what exactly is regulated is not likely to come anytime soon.
Background
The Clean Water Act regulates discharges of pollutants into “navigable waters,” which Congress defined to mean “the waters of the United States, including the territorial seas,” with no further explanation. Ever since, agencies, courts, and the regulated community have struggled to understand which features the Act regulates, and which it does not.
At first, the Army Corps of Engineers defined navigable waters in a traditional way, essentially as waters that could float a real boat. A federal district court, however, in NRDC v. Callaway (1975), held that the Corps’ definition was too narrow and that Congress intended the Act to regulate all waters subject to the Commerce Clause, generally meaning waters that may affect interstate commerce.
In response, the Corps revised its regulations to also include waters “which could affect interstate commerce,” plus “wetlands adjacent” to other jurisdictional waters.
Those regulations reached the U.S. Supreme Court three times. The first case, Riverside Bayview Homes (1985), challenged whether the statutory phrase “navigable waters” could be read to include the regulation’s concept of “adjacent wetlands.” The Court unanimously held that it could. The Court acknowledged that classifying “’lands,’ wet or otherwise” as “waters” “may appear unreasonable.” But critical for the Court was a line-drawing problem: “the transition from waters to solid ground is not necessarily or even typically an abrupt one,” for in the margins may lie “shallows, marshes, mudflats, swamps, bogs” and other wet features that are neither wholly water nor land. Because of that problem, the Court deferred to the Corps’ “ecological judgment” that adjacent wetlands can reasonably be viewed as part of other jurisdictional waters.
In the second case, SWANCC (2001), the Court considered whether the Corps could regulate to the full extent of the Commerce Clause, including all waters that may affect interstate commerce. A 5-Justice majority held that the Corps could not, effectively overruling NRDC v. Callaway. The Court began from the premise that land-use decisions are “traditionally performed by local governments.” If Congress had intended to intrude on that traditional local domain, and regulate to the full extent of its Constitutional authority under the Commerce Clause, the Court expected a “clear statement” in the statute to that effect. The Clean Water Act contains no such clear statement; rather, it expressly preserves states’ rights to “plan the development and use” of “land and water resources.” Deferring to the “statute as written,” the Court read it to extend only to “waters that were or had been navigable in fact or which could reasonably be so made” (such as abutting wetlands that could be dredged out to enlarge a navigable-in-fact waterway).
In the third case, Rapanos (2006), the Court weighed whether wetlands were “adjacent” if physically separated from, but somehow hydrologically connected to, other jurisdictional waters. The Corps had been taking the view that waters and wetlands far afield from any real river were jurisdictional, including remote irrigation ditches, desert washes, and arroyos, because the water that drains from them eventually flows downhill. The Court held that mere hydrologic connection was not sufficient, but a majority could not agree on why. Justice Scalia, for a plurality, wrote that features must have “relatively permanent” water flows for there to be jurisdiction, while the Corps could not regulate where water flows only “intermittently,” “ephemerally,” or “periodically,” Justice Kennedy wrote separately to concur in the judgment, but for different reasons: he wrote that a feature should be jurisdictional whenever it had a “significant nexus” to truly navigable waters.
In 2015, the Obama administration adopted new regulations intended to codify Justice Kennedy’s significant-nexus test. With notable exceptions, the 2015 rule was premised on a survey of the scientific literature—called the “Connectivity Report”—showing an ecological nexus between uphill streams and wetlands and downhill rivers and oceans, and classifying most of those features as jurisdictional. Dozens of lawsuits immediately challenged that rule, and the courts put it on hold in 22 states.
Donald Trump ran on repealing and replacing the 2015 rule. His administration announced its new rules in January 2020.
The Trump administration’s rule charts a new but narrower course. The core of the new rule borrows from Riverside Bayview Homes and SWANCC to define “navigable waters” as traditional navigable waters and the wetlands that physically touch them. But it rejects Justice Kennedy’s “significant nexus” test from Rapanos, and the Connectivity Report that test inspired. At the same time, it goes beyond Justice Scalia’s Rapanos test to regulate tributaries with only “intermittent” flow.
Meanwhile, California has taken the position in at least two pending cases (in which Briscoe Ivester & Bazel LLP is representing a party) that its laws regulating discharges of “waste” to waters authorize it to regulate all “dredge and fill” discharges, even if intended for beneficial purposes like planting crops, building flood-control channels, or constructing housing. Perhaps skeptical of its own legal position, or just wanting to fill in any regulatory gaps opened up by the Trump administration, California also recently adopted new regulations to expand its authority over wetlands. California’s new rules regulate discharges of “dredge and fill materials” into nearly all wetlands. A legal challenge to those rules is currently pending.
Unless the courts step in, the Trump administration’s rules are expected to go into effect by late April 2020, and California’s new rules on 28 May 2020.
What The New Rules Mean For California
Over the past three decades, the Corps and EPA had become increasingly aggressive about insisting that farmers and developers go through the expensive and lengthy federal permit process before dredging up or filling in the seasonal wetlands and vernal pools that pock California’s Central Valley and other plains. The Trump administration’s new rules seem intended to exclude most of those kinds of features from federal regulation.
The biggest uncertainty in the new federal rule is likely how the definition of “tributaries” is implemented. Previously, tributaries were defined as having to have a “bed and banks” and “ordinary high water mark”—well understood physical indicators of regular flow that are usually readily identifiable in the field. But the new rule deletes those physical indicators from the definition, defining tributaries merely as having a “channel” with at least “intermittent” flow. But the new regulation does not define “channel” at all. And its definition of “intermittent”—as flow that is “more than in direct response to precipitation”—invites more questions about the required duration and source of flow than it gives answers.
If the Trump administration’s rules do effectively roll back federal regulation of wetlands, California will try to fill any void here. California takes the position that its statutory authority to regulate “waste” discharges already authorizes it to regulate essentially any activity in waters or wetlands. On top of that, its new regulations would explicitly regulate dredge-and-fill discharges to nearly all wetlands. Whether California is successful in filling any federal void will likely turn on the outcome of the multiple pending cases challenging California’s ability to regulate discharges of materials that are put to beneficial use, and not thrown away, under the guise of regulating “waste.”
In the 45 years since NRDC v. Callaway, and the 35 years since Riverside Bayview Homes, significant uncertainty remains about what waters are regulated. Litigation has besieged every version of the rules, and the Trump administration’s effort is likely to face its own significant tests in court. Even if those challenges all fail, and this administration succeeds in rolling back federal regulations, California will try to fill in any gaps. But the scope of California’s authority to regulate even as broadly as the Obama administration had attempted is in significant doubt. Until there is additional clarity, any project that contemplates work in waters or wetlands is likely to continue to require significant time and expense devoted to state or federal permitting processes.
Peter Prows
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630
