{"id":2485,"date":"2017-04-17T13:08:02","date_gmt":"2017-04-17T17:08:02","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/elr\/?p=2485"},"modified":"2023-07-25T15:57:28","modified_gmt":"2023-07-25T19:57:28","slug":"navigating-with-an-ocean-liner-the-clean-water-rule-trumps-executive-order-and-the-future-of-waters-of-the-united-states","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/elr\/2017\/04\/17\/navigating-with-an-ocean-liner-the-clean-water-rule-trumps-executive-order-and-the-future-of-waters-of-the-united-states\/","title":{"rendered":"Navigating with an Ocean Liner: The Clean Water Rule, Trump\u2019s Executive Order, and the Future of \u201cWaters of the United States\u201d"},"content":{"rendered":"

By Kacy Manahan,\u00a0Lewis & Clark Law School\u00a0*<\/a><\/p>\n

This post is part of the Environmental Law Review Syndicate<\/a>.<\/p>\n

I. Introduction<\/h1>\n

The scope of the Clean Water Act\u2019s jurisdiction has been controversial throughout the statute\u2019s history. Reconciling the extent of Congress\u2019 Commerce Clause authority with the reality of vast hydrological connections across the United States has been an unenviable task delegated to the United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (the Corps). This post is a comprehensive, though certainly not exhaustive, examination of EPA\u2019s and the Corps\u2019 efforts to define the jurisdictional scope of the Clean Water Act. The issue is once again embroiled in litigation, and regulation is in the hands of an Administration seeking to depart substantially from prior policies. For that reason, I also discuss potential outcomes of the litigation and President Trump\u2019s Executive Order.<\/p>\n

II. History of the \u201cWaters of the United States\u201d Rule<\/h1>\n

In 1972, Congress amended the Federal Water Pollution Control Act to create what we know today as the Clean Water Act.[1]<\/a> For the first time, federal jurisdiction based on the Commerce Clause power extended beyond traditional navigable waters, as the Act defined \u201cnavigable waters\u201d to mean \u201cwaters of the United States, including the territorial seas.\u201d[2]<\/a> EPA and the Corps (the Agencies) share regulatory authority under the Act, however, EPA has ultimate authority to interpret the term \u201cnavigable waters.\u201d[3]<\/a><\/p>\n

A. The Regulatory Evolution of Waters of the United States<\/h2>\n

The first substantive definition of \u201cwaters of the United States\u201d came from EPA\u2019s Office of General Counsel in 1973.[4]<\/a> EPA believed that removal of the word \u201cnavigable\u201d from the definition evidenced congressional intent to regulate \u201cpollution of waters . . . capable of affecting interstate commerce.\u201d[5]<\/a> The definition included navigable waters, tributaries of navigable waters, interstate waters, and interstate lakes, rivers, and streams used by interstate travelers for recreational purposes, for commercial fishing, or for industrial purposes.[6]<\/a> EPA issued an official regulatory definition shortly thereafter, changing the final three categories of jurisdictional waters to intrastate<\/em> waters used by interstate travelers for recreational purposes, for commercial fishing, or for industrial purposes.[7]<\/a><\/p>\n

The Corps issued its regulatory definition in 1974, covering \u201cthose waters of the United States which are subject to the ebb and flow of the tide, and\/or are presently, or have been in the past, or may be in the future susceptible for use for purposes of interstate or foreign commerce.\u201d[8]<\/a> In 1975, the United States District Court for the District of Columbia determined that Congress\u2019 intent in defining \u201cnavigable waters\u201d as \u201cwaters of the United States\u201d was to assert \u201cfederal jurisdiction over the nation\u2019s waters to the maximum extent permissible under the Commerce Clause of the Constitution\u201d and that the term was \u201cnot limited to the traditional tests of navigability\u201d as they appeared in the Corps\u2019 definition.[9]<\/a> The Corps was ordered to publish new regulations based on this interpretation.[10]<\/a><\/p>\n

Ultimately, after some political controversy,[11]<\/a> the Corps published an interim final rule aligning with EPA\u2019s regulation.[12]<\/a> Notably, the Corps definition included wetlands, intrastate waters used for agricultural production, and other waters that, on a case-by-case basis, may be determined by the Corps to \u201cnecessitate regulation for the protection of water quality\u201d as defined in EPA\u2019s guidelines.[13]<\/a> In 1977, the Corps published its final definition distinguishing its jurisdiction under the Act from its jurisdiction under older laws such as the Rivers and Harbors Act.[14]<\/a> The 1977 definition included five categories of waters including a Commerce Clause-based category: \u201cAll other waters of the United States not identified in Categories 1\u20133, such as isolated lakes and wetlands, intermittent streams, prairie potholes, and other waters . . . the destruction of which could affect interstate commerce.\u201d[15]<\/a><\/p>\n

The Commerce Clause category, once codified, was adopted by EPA in later regulations.[16]<\/a> This basis for jurisdiction remained on the books until the latest attempt at defining \u201cwaters of the United States\u201d in 2015.[17]<\/a> By 1982, the Agencies had matching regulatory definitions (the 1982 Rule).[18]<\/a><\/p>\n

B. Challenges to the 1982 Rule in the Supreme Court<\/h2>\n

Over the decades, the 1982 Rule faced repeated challenges in court. However, three Supreme Court rulings have fundamentally defined the jurisdiction of the Clean Water Act, influencing the Agencies\u2019 interpretation of the 1982 Rule, and ultimately straining that interpretation to the point where revision was necessary.<\/p>\n

1. Riverside Bayview<\/h3>\n

United States v. Riverside Bayview Homes, Inc.<\/em>[19]<\/a> (Riverside Bayview<\/em>) originated as an enforcement action against defendants who commenced filling wetlands located on their property before the Corps took action on their permit application.[20]<\/a> The issue before the Court was whether the defendants\u2019 land fell within the Clean Water Act\u2019s jurisdiction.[21]<\/a><\/p>\n

The Court noted that the language, legislative history, and underlying policy of the Clean Water Act regarding its jurisdictional reach was ambiguous.[22]<\/a> Based on this ambiguity, the Court analyzed the reasonableness of the Corps\u2019 assertion of jurisdiction over adjacent wetlands.[23]<\/a> The Court determined:<\/p>\n

In view of the breadth of federal regulatory authority contemplated by the Act itself and the inherent difficulties of defining precise bounds to regulable waters, the Corps’ ecological judgment about the relationship between waters and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent wetlands may be defined as waters under the Act.[24]<\/a><\/p>\n

In deferring to the Corps, the Court upheld the 1982 Rule as permissible under the Clean Water Act.<\/p>\n

2. SWANCC<\/h3>\n

In Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers<\/em>[25]<\/a> (SWANCC<\/em>), the petitioner was a municipal corporation seeking to develop a parcel of real estate for use as a balefill (a type of landfill).[26]<\/a> Based on a finding that migratory birds utilized gravel pits on the parcel, the Corps asserted jurisdiction, and denied the petitioner\u2019s applications for a section 404 permit.[27]<\/a><\/p>\n

The controversy in this case arose from language in the preamble to a Federal Register<\/em> publication by the Corps suggesting that \u201cother waters\u201d as defined in the 1982 Rule included waters utilized by migratory birds.[28]<\/a><\/p>\n

Distinguishing this case from Riverside Bayview<\/em>, the Court planted the seed of the now-familiar \u201csignificant nexus\u201d standard.<\/p>\n

It was the significant nexus between the wetlands and \u201cnavigable waters\u201d that informed our reading of the CWA in Riverside Bayview Homes<\/em>. Indeed, we did not \u201cexpress any opinion\u201d on the \u201cquestion of the authority of the Corps to regulate discharges of fill material into wetlands that are not adjacent to bodies of open water . . . .\u201d In order to rule for respondents here, we would have to hold that the jurisdiction of the Corps extends to ponds that are not adjacent to open water. But we conclude that the text of the statute will not allow this.[29]<\/a><\/p>\n

This statement arguably eliminated the entire category of \u201cother waters\u201d from the jurisdictional scope of the Clean Water Act. A narrower interpretation of the holding focuses on the Migratory Bird Rule. The Court chose to read the Clean Water Act \u201cto avoid the significant constitutional and federalism questions raised by respondent\u2019s interpretation,\u201d meaning the Migratory Bird Rule, and therefore gave the Corps no deference.[30]<\/a> The Court held that the \u201cother waters\u201d provision \u201cas clarified and applied to petitioner\u2019s balefill site pursuant to the \u2018Migratory Bird Rule\u2019 exceeds the authority granted to respondents under \u00a7 404(a) of the CWA.\u201d[31]<\/a><\/p>\n

The Corps interpreted this holding narrowly by issuing guidance advising regulators to no longer assert jurisdiction based on the presence of migratory birds, but to \u201cconsult legal counsel\u201d if a water body in question might be connected with interstate commerce.[32]<\/a><\/p>\n

3. Rapanos<\/h3>\n

In 2006, the Supreme Court issued its decision in Rapanos v. United States<\/em>.[33]<\/a> This decision vacated and remanded two decisions from the United States Court of Appeals for the Sixth Circuit upholding the Corps\u2019 assertion of jurisdiction based on a \u201csignificant nexus\u201d standard,[34]<\/a> however, the contemporaneous opinion was fractured and no majority opinion emerged.[35]<\/a> Justice Scalia authored the plurality opinion, joined by Chief Justice Roberts and Justices Thomas and Alito.[36]<\/a> Chief Justice Roberts and Justice Kennedy wrote concurring opinions.[37]<\/a> Justice Stevens authored the dissenting opinion, joined by Justices Souter, Ginsburg, and Breyer.[38]<\/a><\/p>\n

In this 4\u20131\u20134 split, five justices agreed that the lower court decisions should be vacated.[39]<\/a> Four justices agreed that the lower court decisions should be affirmed.[40]<\/a> Eight justices agreed that Scalia\u2019s test would confer jurisdiction.[41]<\/a> Five justices agreed that Kennedy\u2019s test would confer jurisdiction.[42]<\/a> Since both tests were approved by a majority of the justices, a definitive test for determining the appropriate connection between traditional navigable waters and other hydrological features was once again eluded.<\/p>\n

i. Justice Scalia\u2019s Plurality Opinion<\/h4>\n

The plurality simplified the jurisdictional inquiry by focusing on the word \u201cwaters\u201d, which appears in both sections 502(7) and 502(12).[43]<\/a> The plurality examined a dictionary definition of \u201cwaters\u201d and concludes that based \u201c[o]n this definition, \u2018the waters of the United States\u2019 include only relatively permanent, standing or flowing bodies of water.\u201d[44]<\/a><\/p>\n

The plurality noted that the Court in Riverside Bayview<\/em> found the line between waters of the United States and dry land to be ambiguous, and therefore deferred to the Corps\u2019 determination.[45]<\/a> Without pointing to any particular language from SWANCC<\/em>, the plurality stated that in SWANCC<\/em> the Court rejected the notion that ecological considerations can provide an independent basis for jurisdiction.[46]<\/a> Based on this assumption, the plurality added a second requirement to its jurisdictional test: \u201c[O]nly those wetlands with a continuous surface connection to bodies that are \u2018waters of the United States\u2019 in their own right, so that there is no clear demarcation between \u2018waters\u2019 and wetlands, are \u2018adjacent to\u2019 such waters and covered by the Act.\u201d[47]<\/a><\/p>\n

The plurality\u2019s test therefore requires a determination that 1) the \u201cadjacent\u201d water is relatively permanent, and 2) that there is a continuous surface connection to the \u201cadjacent\u201d water.[48]<\/a><\/p>\n

ii. Justice Kennedy\u2019s Concurrence<\/h4>\n

In his concurring opinion, Justice Kennedy\u2019s view of the \u201csignificant nexus\u201d standard suggests that it is more than an indicator of \u201cadjacency\u201d\u2014he found that Riverside Bayview<\/em> stood for the proposition that \u201cthe connection between a nonnavigable <\/em>water or wetland and a navigable water may be so close, or potentially so close, that the Corps may deem the water or wetland a \u2018navigable water\u2019 under the Act.\u201d[49]<\/a> Justice Kennedy characterized SWANCC<\/em> as standing for the inverse: if there is \u201clittle or no connection\u201d between a nonnavigable water and a traditional navigable water, then that water is not jurisdictional.[50]<\/a><\/p>\n

His concurrence discusses how a \u201csignificant nexus\u201d may be established: \u201c[W]etlands possess the requisite nexus, and thus come within the statutory phrase \u2018navigable waters,\u2019 if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as \u2018navigable.\u2019\u201d[51]<\/a><\/p>\n

iii. Aftermath of Rapanos<\/h4>\n

Because there is no single \u201clogical subset\u201d from which a clear rule can be divined, courts have disagreed on how to apply the law. Nonetheless, most courts agreed that a water was jurisdictional under the Act at least<\/em> where Justice Kennedy\u2019s significant nexus test was satisfied, and no court has held that a water is jurisdictional only<\/em> if it meet\u2019s the plurality\u2019s \u201ccontinuous surface connection\u201d requirement. [52]<\/a> In 2008, the Agencies issued a guidance document instructing regulators as to what waters were now considered jurisdictional considering the Supreme Court\u2019s opinion.[53]<\/a><\/p>\n

III. The Current Status of the 2015 Clean Water Rule<\/h1>\n

Accepting Justice Kennedy\u2019s invitation to clarify CWA jurisdiction through a new rulemaking,[54]<\/a> the Agencies promulgated the final Clean Water Rule (2015 Rule) on June 29, 2015.[55]<\/a> Several states, industry groups, and environmental stakeholders challenged the 2015 Rule on the day of promulgation.[56]<\/a> One day before the effective date, a district court judge in North Dakota granted a temporary injunction in favor of state petitioners.[57]<\/a> Meanwhile, the Agencies sought to transfer nine district court cases for centralized pretrial proceedings.[58]<\/a> The United States Judicial Panel on Multidistrict Litigation denied the government\u2019s motion based on a lack of discovery or questions of fact.[59]<\/a> By the end of 2015, over one hundred parties had filed twenty-three petitions for review in the courts of appeals, and almost one hundred parties had filed seventeen district court complaints.[60]<\/a><\/p>\n

A. The Sixth Circuit\u2019s Jurisdictional Ruling<\/h2>\n

Many petitions originating in the courts of appeals were consolidated in the Sixth Circuit.[61]<\/a> Determining that state petitioners had demonstrated a substantial possibility of success on the merits, the court issued a nationwide stay of the Clean Water Rule which remains in place today.[62]<\/a> Several petitioners then moved to dismiss their own petitions due to lack of jurisdiction.[63]<\/a> Before a panel of judges, petitioners and intervenors argued that the Clean Water Act\u2019s judicial review provision, section 509(b)(1), should be read narrowly to exclude the 2015 Rule from its scope.[64]<\/a> The federal defendants, on the other hand, argued that either sections 509(b)(1)(E) or 509(b)(1)(F) could be used to invoke court of appeals jurisdiction.[65]<\/a><\/p>\n

Judge McKeague, delivering the opinion of the court, agreed with federal defendants that section 509(b)(1)(E) applied because the 2015 Rule \u201cindirectly<\/em> produce[d] various limitations on point-source operators and permit issuing authorities.\u201d[66]<\/a> Furthermore, \u00a7 509(b)(1)(F) applied as well, since the extension of jurisdiction found in the 2015 Rule \u201cindisputably expand[ed] regulatory authority and impact[ed] the granting and denial of permits in fundamental ways.\u201d[67]<\/a> Judge Griffin, concurring in the judgment, did so only because of circuit precedent.[68]<\/a> Therefore, petitioners\u2019 and intervenors\u2019 motions to dismiss were denied, and the Sixth Circuit retained jurisdiction based on section 509(b)(1)(F).[69]<\/a><\/p>\n

B. The Supreme Court Case<\/h2>\n

Sixth Circuit intervenor National Association of Manufacturers petitioned the Supreme Court for writ of certiorari in September 2016.[70]<\/a> The Court granted the petition on the following issue:<\/p>\n

[W]hether the Sixth Circuit erred when it held that it has jurisdiction under 33 U.S.C. \u00a7 1369(b)(1)(F) to decide petitions to review the waters of the United States rule, even though the rule does not \u201cissu[e] or den[y] any permit\u201d but instead defines the waters that fall within Clean Water Act jurisdiction.[71]<\/a><\/p>\n

At the time of this writing, opening briefs are due to be filed on April 27, 2017[72]<\/a><\/p>\n

IV. President Trump\u2019s Executive Order and the Future of Rulemaking and Litigation<\/h1>\n

The election of Donald Trump undoubtedly ushered in the beginnings of a seismic shift in federal environmental policy. On February 28, 2017, President Trump signed an Executive Order directing the Agencies to review the 2015 Rule for consistency with the following policy: \u201cIt is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.\u201d[73]<\/a> The Agencies are next directed to \u201cpublish for notice and comment a proposed rule rescinding or revising the rule, as appropriate and consistent with law.\u201d[74]<\/a> Finally, the Order mandates that the Agencies \u201cshall consider interpreting the term \u2018navigable waters,\u2019 . . . in a manner consistent with the opinion of Justice Antonin Scalia\u201d in Rapanos<\/em>.[75]<\/a> A rule defining \u201cwaters of the United States\u201d in accordance with this Order would represent a significant and unprecedented narrowing of Clean Water Act jurisdiction. Notably, this Executive Order has no immediate regulatory effect. However, for the remainder of this post, the discussion will assume that the Agencies share the interests of the State petitioners, and will seek a litigation strategy leading to the collapse of the 2015 Rule.<\/p>\n

As a result of the Executive Order, the federal respondents in National Ass\u2019n of Manufacturers v. United States Department of Defense<\/em> sought to hold the Supreme Court briefing schedule in abeyance. This motion was denied, however, after facing opposition from several parties.[76]<\/a><\/p>\n

A. Potential Outcomes of Current Litigation<\/h2>\n

Based on federal respondent\u2019s failure to convince the Court to hold briefing in abeyance, it is likely that the Court will decide the jurisdictional issue before the 2015 Rule\u2019s revision or rescission. Once litigation returns to the Sixth Circuit or the district courts (depending on the ruling), it is unclear whether a court will decide the merits of the 2015 Rule. If the Agencies take regulatory action either before or shortly after the litigation becomes active again, those who petitioned for review of the 2015 Rule may find their petitions mooted.<\/p>\n

A two-part test determines mootness: a case is moot if \u201c(1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.\u201d[77]<\/a> \u201cWhen both conditions are satisfied it may be said that the case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law.\u201d[78]<\/a> Undoubtedly, the Agencies\u2019 action in rescinding or revising the rule would qualify as \u201cinterim relief or events,\u201d but there is a question of whether a rescission means that \u201cno reasonable expectation that the alleged violation will recur,\u201d or in the event of a revision, whether it has \u201ccompletely and irrevocably eradicated the effects of the alleged violation\u201d.[79]<\/a> Additionally, an exception to mootness occurs when a petitioner demonstrates that: \u201c(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.\u201d[80]<\/a><\/p>\n

As an example, if the Agencies rescind the 2015 Rule without immediately replacing it with a new rule, the \u201ccapable of repetition yet evading review\u201d exception may apply regarding certain claims. In another scenario, if a revision of the 2015 Rule presents many of the same issues, then the effects of the alleged violations are not completely and irrevocably eradicated and litigation may continue. On the other hand, if the Agencies are not prepared to rescind or revise the 2015 Rule upon resumption of litigation, and they attempt to argue that the case is moot by virtue of the Executive Order\u2019s expression of intent alone, it is unlikely that such an argument will meet the Davis<\/em> test for mootness.<\/p>\n

Precedent from the United States Court of Appeals for the Ninth Circuit suggests that if the Agencies cannot immediately revise or rescind the rule, they may have another option\u2014a consent judgment. In Turtle Island Restoration Network v. United States Department of Commerce<\/em>[81]<\/a> (Turtle Island<\/em>), the court held that no Administrative Procedure Act[82]<\/a> (APA) rulemaking procedure was necessary when environmental plaintiffs and federal defendants entered into a consent decree vacating a portion of a final rule, temporarily reinstated the previous rule, and remanded the rule to the agency to reconsider a new rule.[83]<\/a> Industry defendant-intervenors appealed the consent decree and cited the United States Court of Appeals for the District of Columbia Circuit\u2019s decision in Consumer Energy Council of America v. Federal Energy Regulatory Commission<\/em>[84]<\/a> (Consumer Energy<\/em>) for the proposition that notice and comment is required prior to repeal.[85]<\/a> The Ninth Circuit distinguished Consumer Energy<\/em> by finding the concerns motivating the agency in that case to be different from those raised during the original rulemaking and noting that no party in that case had suggested repeal as a remedy.[86]<\/a> In Turtle Island<\/em>, the environmental plaintiffs sought repeal for reasons that they had raised during the initial rulemaking.[87]<\/a> The court also noted that no substantive changes were made to the rule\u2014repealing the provision at issue simply reinstated the prior rule.[88]<\/a><\/p>\n

In a more recent Ninth Circuit opinion, the court simultaneously reaffirmed its holding in Turtle Island <\/em>while limiting the types of consent decrees that may alter a regulation:<\/p>\n

It follows that where a consent decree does promulgate a new substantive rule, or where the changes wrought by the decree are permanent rather than temporary, the decree may run afoul of statutory rulemaking procedures even though it is in form a \u201cjudicial act.\u201d [\u2026] We therefore hold that a district court abuses its discretion when it enters a consent decree that permanently and substantially amends an agency rule that would have otherwise been subject to statutory rulemaking procedures.[89]<\/a><\/p>\n

Together, Turtle Island <\/em>and Conservation Northwest<\/em> v. Sherman<\/em> create the following positive rule: If a consent decree repeals or vacates an agency action, the legal effect is to restore the status quo, and if this restoration is temporarily subject to further agency action\u2014the substance of which remains within the agency\u2019s discretion\u2014then the consent decree may be upheld.[90]<\/a><\/p>\n

Entering a consent decree may be an attractive option if federal defendants see it as the quickest escape route from litigation. However, petitioners who prefer the 2015 Rule to the prior rule will likely object to the decree. If objection is unsuccessful, the court may consider whether all petitioners\u2019 claims have been mooted by the terms of the consent decree.<\/p>\n

B. Possible Regulatory Actions<\/h2>\n

Shortly following the issuance of President Trump\u2019s Executive Order, the Agencies published a notice of their intent to engage in a rulemaking consistent with that Order.[91]<\/a><\/p>\n

It is unlikely that they will accomplish this task quickly. Considering the nine-year gap between Rapanos<\/em> and the final 2015 Rule, the prospect of a final rule occurring within the current administration is questionable. In the meantime, the Agencies may attempt to use a guidance document similar to the 2008 guidance issued after Rapanos<\/em>. A guidance document based on the plurality in Rapanos <\/em>will be less susceptible to challenge if implemented while the 1982 Rule is in force, as opposed to the 2015 Rule, which relies heavily on the \u201csignificant nexus\u201d test. However, any guidance document that substantively changes the legal meaning of a regulation may be set aside by a court if challenged.[92]<\/a><\/p>\n

Therefore, if the federal defendants are unable to dispose of the 2015 Clean Water Rule via litigation, they may attempt to revoke the 2015 Rule without immediately replacing it. Such a revocation may be subject to challenges based on procedure, substance, or both. If the Agencies fail to utilize APA notice and comment procedures in revoking the 2015 Rule, a court could invalidate the revocation.<\/p>\n

In Consumer Energy<\/em>, federal defendants argued that their revocation of the rule at issue rendered the case moot.[93]<\/a> However, the court held that the Federal Energy Regulatory Commission\u2019s revocation order was invalid because the agency did not follow APA rulemaking procedures: \u201cThe value of notice and comment prior to repeal of a final rule is that it ensures that an agency will not undo all that it accomplished through its rulemaking without giving all parties an opportunity to comment on the wisdom of repeal.\u201d[94]<\/a> Substantive challenges to a revocation, rescission, or revision are discussed in the following section.<\/p>\n

C. Challenging a New Rule<\/h2>\n

The oft-cited Motor Vehicle Manufacturers Ass\u2019n of the United States v. State Farm Mutual Automobile Insurance Co.<\/em>[95]<\/a> stands for the proposition that \u201can agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.\u201d[96]<\/a> This case arose when the Reagan Administration, in a nationwide deregulation effort, rescinded a rule requiring auto makers to install either airbags or passive restraints.[97]<\/a><\/p>\n

However, in Federal Communications Commission v. Fox Television Stations, Inc.<\/em>[98]<\/a> (Fox Television<\/em>), the Court clarified its ruling: \u201c[O]ur opinion in State Farm<\/em> neither held nor implied that every agency action representing a policy change must be justified by reasons more substantial than those required to adopt a policy in the first instance.\u201d[99]<\/a> The Court explained that the distinction being made in State Farm<\/em> was between a \u00a7 706(1) review of a failure to act and a \u00a7 706(2)(A) review of agency action, not initial and subsequent agency action as in a rulemaking and rescission.[100]<\/a><\/p>\n

Describing the support required for a change, the Fox Television<\/em> Court highlighted that an agency must \u201c[1)]display awareness that it is changing position,\u201d and it is sufficient if the record shows that \u201c[2)] the new policy is permissible under the statute, [3)] that there are good reasons for it, and [4)] that the agency believes [the new policy] to be better.\u201d[101]<\/a> The fourth element is similar to a free space in bingo\u2014the agency\u2019s change in policy \u201cadequately indicates\u201d its belief that the new policy is better.[102]<\/a><\/p>\n

Fox Television<\/em> says an agency must \u201cprovide a more detailed justification than what would suffice for a new policy created on a blank slate\u201d: When 1) \u201cits new policy rests upon factual findings that contradict those which underlay its prior policy\u201d or 2) \u201cwhen its prior policy has engendered serious reliance interests that must be taken into account.\u201d[103]<\/a> In these scenarios, \u201ca reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.\u201d[104]<\/a><\/p>\n

Although it seems relatively easy for an agency to justify a change in policy based on the Fox Television<\/em> standard, a question remains regarding what role the extensive scientific record used to justify the 2015 Rule may play in challenging a new rule.[105]<\/a><\/p>\n

Ninth Circuit precedent emerging from the Bush-era \u201cRoadless Rule\u201d provides useful guidance for how a court may handle a changed policy. In a case regarding the \u201cTongass Exemption\u201d to the Roadless Rule, the court held that the United States Department of Agriculture\u2019s 2003 Record of Decision (ROD) adopting the Tongass Exemption (which was based on the 2001 Roadless Rule Final Environmental Impact Statement) was arbitrary and capricious based on a Fox Television <\/em>analysis of the change in policy.[106]<\/a> In the 2001 ROD for the Roadless Rule, the agency found that \u201cthe long-term ecological benefits to the nation of conserving these inventoried roadless areas outweigh the potential economic loss to southeast Alaska communities from application of the Roadless Rule.\u201d[107]<\/a> In the 2003 ROD for the Tongass Exemption, however, the agency reversed its policy based on \u201cconcern about economic and social hardship that application of the roadless rule\u2019s prohibitions would cause in communities throughout Southeast Alaska.\u201d[108]<\/a><\/p>\n

The Ninth Circuit found that the agency \u201cmade factual findings directly contrary to the 2001 ROD and expressly relied on those findings to justify the policy change.\u201d[109]<\/a> The court was careful to note that agencies are entitled to give more weight to certain concerns, but may not \u201csimply discard prior factual findings without a reasoned explanation.\u201d[110]<\/a> The finding at issue was the necessity of the Roadless Rule to maintain important roadless area values.[111]<\/a> The 2001 ROD made this finding, but the 2003 ROD found that the Roadless Rule was unnecessary because roadless values were protected by the Tongass Forest Plan.[112]<\/a> The agency concluded that the sufficiency of the Forest Plan struck a new balance in its analysis, causing socioeconomic concerns to outweigh the benefits of the Roadless Rule\u2019s protections.[113]<\/a> The court found that the 2003 ROD violated the APA because the agency provided no reasoned explanation for \u201cwhy an action that it found posed a prohibitive risk to the Tongass environment only two years before now poses merely a \u2018minor\u2019 one.\u201d[114]<\/a><\/p>\n

However, the Agencies may reevaluate their policy choices based on the facts available to them if the statute permits the resulting rule. In National Ass\u2019n of Home Builders v. United States Environmental Protection Agency<\/em>,[115]<\/a> the D.C. Circuit rejected petitioners\u2019 argument that the amendment of a rule was invalid because the promulgating agency merely revisited old arguments rather than basing its amendment on new facts or circumstances.[116]<\/a> The court held that \u201ca reevaluation of which policy would be better in light of the facts\u201d is permissible, as Fox Television<\/em> made clear that \u201cthis kind of reevaluation is well within an agency\u2019s discretion.\u201d[117]<\/a><\/p>\n

The court also rejected petitioner\u2019s contention that \u201cbecause the [r]ule eliminates a provision that was consistent with congressional intent, the Court should not defer to EPA in making such a decision.\u201d[118]<\/a> The court held that \u201cthe fact that the original [rule] was consistent with congressional intent is irrelevant as long as the amended rule is also permissible under the statute.\u201d[119]<\/a> However, it was also emphasized that EPA found the rule\u2019s amendment to promote \u201cto a greater extent, the statutory directive.\u201d[120]<\/a> The court noted that \u201cit was hardly arbitrary or capricious for EPA to issue an amended rule it reasonably believed would be more reliable, more effective, and safer than the original rule.\u201d[121]<\/a><\/p>\n

Again, assuming that any new rule will be promulgated pursuant to the Executive Order, the rule will likely follow the standard enunciated by the late Justice Scalia in Rapanos<\/em>. A petitioner may have an uphill battle in arguing that such a policy is not permitted by the Clean Water Act\u2014not only is the plain language of the Act uncommonly vague, but an interpretation crafted by a Supreme Court justice and accepted as sufficient to establish jurisdiction by a majority of the Court is uncommonly valid. However, those who wish to see a more protective rule may be able to argue congressional intent despite the D.C. Circuit\u2019s holding in National Ass\u2019n of Home Builders<\/em>\u2014since EPA, in that case, believed its new regulation increased conformity with the purpose of the statute rather than deviated from it.[122]<\/a><\/p>\n

V. Conclusion<\/h1>\n

Although it is difficult to see clearly into the future, those who have studied or practiced administrative law know that APA notice and comment rulemaking requires substantial resources. To develop an administrative record supporting a rule based on Justice Scalia\u2019s plurality in Rapanos <\/em>may take years. Once the rule is final, it will face opposition from many directions. In the case of Clean Water Act jurisdiction, a change in the regulatory landscape affects a wide swath of interests\u2014state sovereignty, landowner rights, industry flexibility, human health, conservation, and recreation. Considering that even a guidance conforming with Justice Scalia\u2019s test could be subject to judicial review, there seems to be no tool that the Trump Administration can utilize to rapidly change the regulatory landscape of the Clean Water Act. In the words of former President Barack Obama, \u201cthe federal government and our democracy is not a speedboat, it\u2019s an ocean liner.\u201d[123]<\/a><\/p>\n

*<\/a> Kacy Manahan is a clinical student at Earthrise Law Center at Lewis & Clark Law School where she assists in representing Respondent Waterkeeper Alliance in National Ass\u2019n of Manufacturers v. United States Department of Defense before the Supreme Court of the United States. She is the 2017\u20132018 Symposium Editor for Environmental Law, and can be reached at kmanahan@lclark.edu.<\/p>\n

[1]<\/a> Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816 (codified as amended at 33 U.S.C. \u00a7\u00a7 1251\u20131388 (2012)).<\/p>\n

[2]<\/a> Clean Water Act, 33 U.S.C. \u00a7 1362 (2012); Stephen P. Mulligan, Cong. Research Serv., R44585, Evolution of the Meaning of \u201cWaters of the United States\u201d in the Clean Water Act 1 (2016).<\/p>\n

[3]<\/a> See<\/em> 33 U.S.C. \u00a7 404 (2012) (describing the duties of the Corps and EPA in permitting discharge of dredged or fill material); Administrative Authority to Construe \u00a7 404 of the Federal Water Pollution Control Act, 43 Op. Att\u2019y Gen. 197 (1979).<\/p>\n

[4]<\/a> Office of Gen. Counsel, U.S. Envtl. Prot. Agency, Meaning of the Term \u201cNavigable Waters\u201d (Feb. 6, 1973), reprinted in <\/em>Office of Gen. Counsel, U.S. Envtl. Prot. Agency, A Collection of Legal Opinions: December 1970\u2013December 1973, at 295 (1975).<\/p>\n

[5]<\/a> Id.<\/em><\/p>\n

[6]<\/a> Id.<\/em><\/p>\n

[7]<\/a> See <\/em>National Pollutant Discharge Elimination System, 38 Fed. Reg. 13,528, 13,529 (May 22, 1973) (current version codified at 40 C.F.R. \u00a7 230.3 (2016)).<\/p>\n

[8]<\/a> Permits for Activities in Navigable Waters or Ocean Waters, 39 Fed. Reg. 12,115, 12,119 (Apr. 3, 1974) (current version codified at 33 C.F.R. \u00a7 328.3 (2016)); see also<\/em> 33 C.F.R. \u00a7 209.260 (1974)) (providing detailed information regarding how navigability was determined).<\/p>\n

[9]<\/a> Nat. Res. Def. Council, Inc. v. Callaway, 392 F. Supp. 685, 686 (D.D.C. 1975).<\/p>\n

[10]<\/a> Id.<\/em><\/p>\n

[11]<\/a> Mulligan, supra <\/em>note 2, at 9.<\/p>\n

[12]<\/a> Compare<\/em> Permits for Activities in Navigable Waters or Ocean Waters, 40 Fed. Reg. 31,320, 31,324\u201325 (July 25, 1975) (the Corps\u2019 definition), with <\/em>40 C.F.R. \u00a7 125.1(p) (1974) (EPA\u2019s definition at the time of the Corp\u2019s promulgation).<\/p>\n

[13]<\/a> 40 Fed. Reg. at 31,324\u201325.<\/p>\n

[14]<\/a> Rivers and Harbors Act of 1899, 33 U.S.C. \u00a7\u00a7 401\u2013418, 502, 687 (2012); Regulatory Programs of the Corps of Engineers, 42 Fed. Reg. 37,122, 37,127 (July 19, 1977); Mulligan, supra <\/em>note 2, at 10 n.64.<\/p>\n

[15]<\/a> 42 Fed. Reg. at 37,127\u201328, 37,144 (codified at 33 C.F.R. \u00a7 323.2(a) (1978)); Mulligan, supra <\/em>note 2, at 10.<\/p>\n

[16]<\/a> See <\/em>Consolidated Permit Regulations, 45 Fed. Reg. 33,290, 33,424 (May 19, 1980) (codified at 40 C.F.R. \u00a7 122.3 (1981)).<\/p>\n

[17]<\/a> Mulligan, supra <\/em>note 2 at 10.<\/p>\n

[18]<\/a> 40 C.F.R. \u00a7 122.3 (1982), Interim Final Rule for Regulatory Programs of the Corps of Engineers, 47 Fed. Reg. 31,794, 31,810 (July 22, 1982).<\/p>\n

[19]<\/a> 474 U.S. 121 (1985)<\/p>\n

[20]<\/a> Id.<\/em> at 124.<\/p>\n

[21]<\/a> Id. <\/em>at 126.<\/p>\n

[22]<\/a> Id.<\/em> at 132.<\/p>\n

[23]<\/a> See generally <\/em>Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) (establishing a two-part test to determine whether to grant an agency deference in interpreting a statute).<\/p>\n

[24]<\/a> Riverside Bayview<\/em>, 474 U.S. at 134.<\/p>\n

[25]<\/a> 531 U.S. 159 (2001).<\/p>\n

[26]<\/a> Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Eng\u2019rs, 998 F. Supp. 946, 948 (N.D. Ill. 1998), aff’d<\/em>, 191 F.3d 845 (7th Cir. 1999), rev’d<\/em>, 531 U.S. 159 (2001).<\/p>\n

[27]<\/a> Id.<\/em><\/p>\n

[28]<\/a> Final Rule for Regulatory Programs of the Corps of Engineers, 51 Fed. Reg. 41,206, 41,216\u201317 (Nov. 13, 1986).<\/p>\n

[29]<\/a> SWANCC<\/em>, 531 U.S. at 167\u201368 (2001) (citation omitted) (alteration in original).<\/p>\n

[30]<\/a> Id. <\/em>at 174.<\/p>\n

[31]<\/a> Id. <\/em>(citation omitted).<\/p>\n

[32]<\/a> Matthew B. Baumgartner, SWANCC\u2019s Clear Statement: A Delimitation of Congress\u2019s Commerce Clause Authority to Regulate Water Pollution<\/em>, 103 Mich. L. Rev. 2137, 2147\u201348 (2005).<\/p>\n

[33]<\/a> Rapanos v. United States, 547 U.S. 715 (2006).<\/p>\n

[34]<\/a> United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004); Carabell v. U.S. Army Corps of Eng\u2019rs, 391 F.3d 704 (6th Cir. 2004).<\/p>\n

[35]<\/a> Rapanos<\/em>, 547 U.S. at 757.<\/p>\n

[36]<\/a> Id.<\/em> at 718.<\/p>\n

[37]<\/a> Id.<\/em> at 757 (Roberts, CJ., concurring); id.<\/em> at 759 (Kennedy, J., concurring in judgment).<\/p>\n

[38]<\/a> Id.<\/em> at 787 (Stevens, J., dissenting). Justice Breyer also wrote a separate dissent. Id.<\/em> at 811 (Breyer, J., dissenting).<\/p>\n

[39]<\/a> Id. <\/em>at 757 (plurality opinion); id.<\/em> at 787 (Kennedy J., concurring in judgment).<\/p>\n

[40]<\/a> Id.<\/em> at 810 (Stevens, J., dissenting).<\/p>\n

[41]<\/a> Id.<\/em><\/p>\n

[42]<\/a> Id.<\/em><\/p>\n

[43]<\/a> Id.<\/em> at 732 (plurality opinion). Section 502(7) defines \u201cnavigable waters to mean \u201cthe waters of the United States, including the territorial seas.\u201d 33 U.S.C. \u00a7 1362(7) (2012). Section 502(12) defines \u201cdischarge of a pollutant\u201d to mean \u201cany addition of any pollutant to navigable waters from any point source.\u201d Id.<\/em> \u00a7 1362(12).<\/p>\n

[44]<\/a> Rapanos<\/em>, 547 U.S. at 732.<\/em><\/p>\n

[45]<\/a> Id.<\/em><\/p>\n

[46]<\/a> Id.<\/em> at 741\u201342.<\/p>\n

[47]<\/a> Id.<\/em> at 742.<\/p>\n

[48]<\/a> Id.<\/em><\/p>\n

[49]<\/a> Id.<\/em> at 767 (Kennedy, J., concurring in judgment) (emphasis added).<\/p>\n

[50]<\/a> Id.<\/em><\/p>\n

[51]<\/a> Id. <\/em>at 779\u201380.<\/p>\n

[52]<\/a> E.g., <\/em>United States v. Robison, 505 F.3d 1208 (11th Cir. 2007) (applying Justice Kennedy\u2019s test because it is the least disruptive to prior case law); United States v. Gerke, 464 F.3d 723 (7th Cir. 2006) (same); United States v. Donovan, 661 F.3d 174 (3d Cir. 2011) (finding jurisdiction under either Justice Kennedy\u2019s or Justice Scalia\u2019s test); United States v. Bailey, 571 F.3d 791 (8th Cir. 2009) (same); United States v. Johnson, 467 F.3d 56 (1st Cir. 2006) (same); United States v. Cundiff, 555 F.3d 200 (6th Cir. 2009) (finding jurisdiction in situations where at least<\/em> Justice Kennedy\u2019s test would be met); N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007) (same).<\/p>\n

[53]<\/a> U.S. Envtl. Prot. Agency & U.S. Dep\u2019t of the Army, Clean Water Act Jurisdiction Following the U.S. Supreme Court\u2019s Decision in Rapanos v. United States<\/em> & Carabell v. United States<\/em> (Dec. 2, 2008), https:\/\/perma.cc\/XE8Q-UJ53.<\/p>\n

[54]<\/a><\/p>\n

[55]<\/a> Clean Water Rule: Definition of \u201cWaters of the United States\u201d, 80 Fed. Reg. 37,054 (June 29, 2015).<\/p>\n

[56]<\/a> E.g.<\/em>, Complaint, Texas v. U.S. Envtl. Prot. Agency, No. 3:15-cv-00162 (S.D. Tex. June 29, 2015); Complaint, North Dakota v. U.S. Envtl. Prot. Agency, No. 3:15-cv-00059-RRE-ARS (D.N.D. June 29, 2015); Complaint, Murray Energy Corp. v. U.S. Envtl. Prot. Agency, No. 1:15-cv-00110-IMK (N.D.W. Va. June 29, 2015).<\/p>\n

[57]<\/a> North Dakota v. U.S. Envt\u2019l Prot. Agency, 127 F. Supp. 3d 1047, 1060 (2015)<\/p>\n

[58]<\/a> In re<\/em> Clean Water Rule: Definition of \u201cWaters of the United States,\u201d 140 F. Supp. 3d 1340, 1340\u201341 (J.P.M.L. 2015).<\/p>\n

[59]<\/a> Id. <\/em>at 1341.<\/p>\n

[60]<\/a> Federal Defendant\u2019s Notice of Appeal of Ruling at 2 n.1, North Dakota v. U.S. Envtl. Prot. Agency, No. 3:15-cv-00059-RRE-ARS (D.N.D. Nov. 24, 2015), 2015 WL 10642813.<\/p>\n

[61]<\/a> Murray Energy Corp. v. U.S. Dep\u2019t of Def. (In re<\/em> U.S. Dep\u2019t of Def.), 817 F.3d 261, 264 (6th Cir. 2016), cert. granted sub nom.<\/em> Nat\u2019l Ass\u2019n of Mfrs. v. Dep\u2019t of Def., 137 S. Ct. 811 (2017).<\/p>\n

[62]<\/a> Ohio v. U.S. Army Corps of Eng\u2019rs (In re<\/em> Envtl. Prot. Agency), 803 F.3d 804 (6th Cir. 2015).<\/p>\n

[63]<\/a> Murray Energy Corp.<\/em>, 817 F.3d at 264.<\/p>\n

[64]<\/a> Id. <\/em>at 265; 33 U.S.C. \u00a7 1369(b)(1) (2012).<\/p>\n

[65]<\/a> Murray Energy Corp.<\/em>, 817 F.3d at 266, 270\u201371. Section 509(b)(1)(E) provides review of the Administrator\u2019s action \u201cin approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title.\u201d 33 U.S.C. \u00a7 1369(b)(1)(E) (2012). Section 509(b)(1)(F) providing review of the Administrator\u2019s action \u201cin issuing or denying any permit under section 1342 of this title.\u201d Id.<\/em> \u00a7 1369(b)(1)(F).<\/p>\n

[66]<\/a> Murray Energy Corp.<\/em>, 817 F.3d at 270.<\/p>\n

[67]<\/a> Id. <\/em>at 272.<\/p>\n

[68]<\/a> Id. <\/em>at 275 (Griffin, J., concurring in judgment) (citing Nat\u2019l Cotton Council of Am. v. U.S. Envt\u2019l Prot. Agency, 53 F.3d 927 (6th Cir. 2009)). In National Cotton Council of America<\/em>, the Sixth Circuit held that section 509(b)(1)(F) authorizes review of regulations governing the issuance of permits. 53 F.3d at 933.<\/p>\n

[69]<\/a> Murray Energy Corp.<\/em>, 817 F.3d at 274 (majority opinion).<\/p>\n

[70]<\/a> Petition for a Writ of Certiorari, Nat\u2019l Ass\u2019n of Mfrs. v. U.S. Dep\u2019t of Def., No. 16-299 (U.S. Sept. 2, 2016), 2016 WL 4698748.<\/p>\n

[71]<\/a> Id.<\/em><\/p>\n

[72]<\/a> Nat\u2019l Ass\u2019n of Mfrs<\/em> (U.S. Apr. 6, 2017) (No. 16-299) (order further extending the time to file Petitioner\u2019s Brief on the Merits to April 27, 2017).<\/p>\n

[73]<\/a> Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the \u201cWaters of the United States\u201d Rule, Exec. Order No. 13,778, \u00a7 1, 82 Fed. Reg. 12,497 (Mar. 3, 2017).<\/p>\n

[74]<\/a> Id.<\/em> \u00a7 2(a).<\/p>\n

[75]<\/a> Id.<\/em> \u00a7 3.<\/p>\n

[76]<\/a> Nat\u2019l Ass\u2019n of Mfrs<\/em>, 2017 WL 1199467 (U.S. Apr. 3, 2017) (mem.) (order denying motion of federal respondents to hold the briefing schedule in abeyance).<\/p>\n

[77]<\/a> Los Angeles County v. Davis, 440 U.S. 625, 631 (1979) (citations and quotation marks omitted).<\/p>\n

[78]<\/a> Id.<\/em><\/p>\n

[79]<\/a> Id.<\/em><\/p>\n

[80]<\/a> Murphy v. Hunt, 455 U.S. 478, 482 (1982) (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam)). This exception is commonly known as the \u201ccapable of repetition, yet evading review\u201d exception. Id.<\/em><\/p>\n

[81]<\/a> 672 F.3d 1160 (9th Cir. 2012).<\/p>\n

[82]<\/a> 5 U.S.C. \u00a7\u00a7 551\u2013559, 701\u2013706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2012).<\/p>\n

[83]<\/a> 672 F.3d at 1164.<\/p>\n

[84]<\/a> 673 F.2d 425, 446 (D.C. Cir. 1982).<\/p>\n

[85]<\/a> Turtle Island<\/em>, 672 F.3d.<\/em> at 1168 (citing Consumer Energy<\/em>, 673 F.2d at 446).<\/p>\n

[86]<\/a> Id.<\/em> at 1169.<\/p>\n

[87]<\/a> Id.<\/em><\/p>\n

[88]<\/a> Id.<\/em><\/p>\n

[89]<\/a> Conservation Nw. v. Sherman, 715 F.3d 1181, 1187 (9th Cir. 2013).<\/p>\n

[90]<\/a> Turtle Island<\/em>, 672 F.3d at 1167\u201369; Conservation Nw., <\/em>715 F.3d at 1187.<\/p>\n

[91]<\/a> Intention to Review and Rescind or Revise the Clean Water Rule, 82 Fed. Reg. 12,532 (Mar. 6, 2017).<\/p>\n

[92]<\/a> See <\/em>Appalachian Power Co. v. U.S. Envtl. Prot. Agency, 208 F.3d 1015 (D.C. Cir. 2000).<\/p>\n

[93]<\/a> Consumer Energy, <\/em>673 F.2d at 445.<\/p>\n

[94]<\/a> Id.<\/em> at 446.<\/p>\n

[95]<\/a> 463 U.S. 29 (1983).<\/p>\n

[96]<\/a> Id.<\/em> at 42.<\/p>\n

[97]<\/a> Id. <\/em>at 36\u201338.<\/p>\n

[98]<\/a> 556 U.S. 502 (2009).<\/p>\n

[99]<\/a> Id.<\/em> at 514.<\/p>\n

[100]<\/a> Id.<\/em> at 515.<\/p>\n

[101]<\/a> Id.<\/em><\/p>\n

[102]<\/a> Id.<\/em><\/p>\n

[103]<\/a> Id.<\/em><\/p>\n

[104]<\/a> Id.<\/em> at 516.<\/p>\n

[105]<\/a> See generally <\/em>Office of Research & Dev., U.S. Envtl Prot. Agency, EPA\/600\/R-14\/475F, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (2015), https:\/\/perma.cc\/7V2L-ZLQ8<\/p>\n

[106]<\/a> See <\/em>Organized Vill. of Kake v. U.S. Dep\u2019t of Agric., 795 F.3d 956, 969 (9th Cir. 2015).<\/p>\n

[107]<\/a> Id.<\/em> at 967 (internal quotations omitted).<\/p>\n

[108]<\/a> Id. <\/em>(internal quotations omitted).<\/p>\n

[109]<\/a> Id. <\/em>at 968.<\/p>\n

[110]<\/a> Id.<\/em><\/p>\n

[111]<\/a> Id.<\/em><\/p>\n

[112]<\/a> Id.<\/em><\/p>\n

[113]<\/a> Id.<\/em><\/p>\n

[114]<\/a> Id. <\/em>at 969.<\/p>\n

[115]<\/a> 682 F.3d 1032 (D.C. Cir. 2012).<\/p>\n

[116]<\/a> Id.<\/em> at 1037\u201338.<\/p>\n

[117]<\/a> Id.<\/em> at 1038.<\/p>\n

[118]<\/a> Id.<\/em> at 1036 (internal quotations omitted).<\/p>\n

[119]<\/a> Id.<\/em><\/p>\n

[120]<\/a> Id.<\/em> at 1039.<\/p>\n

[121]<\/a> Id.<\/em><\/p>\n

[122]<\/a> Id.<\/em><\/p>\n

[123]<\/a> The President\u2019s News Conference, 2016 Daily Comp Pres. Doc. 777, at 8\u20139 (Nov. 14, 2016).<\/p>\n","protected":false},"excerpt":{"rendered":"

By Kacy Manahan,\u00a0Lewis & Clark Law School\u00a0* This post is part of the Environmental Law Review Syndicate. I. Introduction The […]<\/p>\n","protected":false},"author":164,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2],"tags":[],"class_list":["post-2485","post","type-post","status-publish","format-standard","hentry","category-helr-online"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZkUb-E5","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/elr\/wp-json\/wp\/v2\/posts\/2485","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/elr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/elr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/elr\/wp-json\/wp\/v2\/users\/164"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/elr\/wp-json\/wp\/v2\/comments?post=2485"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/elr\/wp-json\/wp\/v2\/posts\/2485\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/elr\/wp-json\/wp\/v2\/media?parent=2485"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/elr\/wp-json\/wp\/v2\/categories?post=2485"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/elr\/wp-json\/wp\/v2\/tags?post=2485"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}