Groundswell: Ground Water Depletion and an Army Corps Revolt?

The "Ditch the Rule" Campaign's frenemy, the Corps of Engineers, argued that the WOTUS rule ceded jurisdiction where it shouldn't have.

Water, water everywhere . . . .  Sea level rise (SLR) has long been among the big threats global climate disruption promises, especially in the public consciousness.  Most of the American populace (like others) lives within 100 miles of the coasts and will be impacted directly by SLR.  But a new threat—exacerbated by climate disruption—seems to be breaking into that first tier: the depletion of drinking water supplies. First consider some haunting results from NASA.  {See NYTimes piece here} dropshot

From that study Todd Frankel at Wonkblog calculates that 21 of the 37 largest aquifers were diminishing during the study period.

Now consider all the places dependent on headwaters-fed surface waters (instead of aquifers) here.

In the run-up to the finalization of the “waters of the United States” (WOTUS) rulemaking a month ago, the two agencies jointly administering the Clean Water Act (CWA) apparently viewed the finalized version of the rule in very different lights.  Late in July, the House Oversight and Government Reform Committee (HOGR) somehow came into possession of several internal communications between the Corps of Engineers and EPA (and others) and released them to the public, much to the chagrin of any government lawyer defending an agency rulemaking!  {See the Committee’s page.}  They kicked up a ruckus, too. {See this Bloomberg BNA report.}

EPA and the Corps, readers will recall, have been struggling to define the CWA’s jurisdiction ever since 2006 when the Supreme Court waded in and made an even bigger quagmire of an already murky area.  This isn’t the place for an extended review of the CWA’s jurisdictional problems.  {See this article on the Rapanos cases of 2006}.  Suffice it to say that, if the statute’s overall purpose—the restoration and maintenance of the “chemical, physical, and biological integrity of the nation’s waters”—will matter much going forward, a “whole watershed” approach to jurisdiction is a must.  And that means regulating far, far upstream.  Indeed, all too often it means regulating outside of the stream—in adjacent wetlands and depressions which hold the key to stream, river, pond, lake and estuarine health.

The Corps and EPA have struggled to take such a watershed approach, though, because they’ve been opposed at every turn by those who view it as a federal power grab.  After life with a 2007-08 guidance document that left much to be desired, the agencies embarked on a rulemaking in 2013.  The documents that somehow escaped from the Corps and into the hands of HOGR paint the finalization of the rule in rather unflattering terms.  Greenwire’s Annie Snider has been giving terrific coverage of the rulemaking.  Alas, it lies behind a paywall.

Most important for our purposes, several Corps officials argued vehemently that because of certain key changes to the final rule from the proposal, the final rule would actually cede CWA jurisdiction which the agencies had retained even after 2007 and would therefore result in a “significant” environmental impact—presumably a negative one.  That, in turn, would force the Corps (but not EPA) to prepare a full-dress environmental impact statement (EIS) instead of the more summary environmental assessment and finding of no significant impact (EA/FONSI) which it actually prepared.

For whatever reason, the Corps officials making that case lost the day and the Administration finalized the rule without an EIS and with the subtractions of jurisdiction EPA had inserted into the final version.  Another key fact: had the Corps prepared an EIS beginning in May 2015, the rulemaking almost certainly would’ve been delayed past the end of the Obama Administration.

Jurisdiction: A “Significant” Impact on the Environment?

Over two dozen lawsuits have been filed thus far challenging this rulemaking.  Big Ag has led the opposition from the beginning.  But now there are suits to challenge it coming from all directions.  The petitions for review filed in the courts of appeal pursuant to CWA § 509(b)(1) have been consolidated {see WOTUS072015_0} in the Sixth Circuit.

An interesting wrinkle here is the many other cases that have been filed in U.S. District Courts by and through the cause of action in the Administrative Procedure Act.  You see, the petitions for review in the courts of appeal stem from CWA § 509(b)(1)—a provision that lists seven quite specific actions by the EPA Administrator that may be reviewed directly in the courts of appeal.  And this rulemaking doesn’t fit any of them—which should mean jurisdiction isn’t proper in the courts of appeal.  See, for example, this careful opinion by Judge Fletcher of the Ninth Circuit.  Northwest Environmental Advocates v. EPA, 537 F.3d 1006 (9th Cir. 2008).

At least a half dozen district court suits have been filed, the most notable among them a suit by North Dakota and a dozen other states.  That’s the case making the NEPA claim against the Corps for not preparing an EIS.  {Note: more on consolidation and jurisdiction in a future post. It could make at least two big differences: (1) the courts’ relative capacities to take evidence rather than simply recording the agencies’ “record;” and (2) the timeline for reaching SCOTUS.}

{Update: The district court granted a preliminary injunction in the North Dakota suit a day before the WOTUS rule was to take effect.  See our post here.} 

The big substantive question, though, is this: could a jurisdictional change be a “significant impact” on the human environment?JurisdictionalBoundaryMap

As we noted in our prior post, there is reason to believe that a jurisdictional change, in itself, does not represent a change in the environment such that NEPA § 102(2)(C)’s significant impact threshold would be crossed.  Any actual effect on the environment, in theory, awaits some future jurisdictional determination in a live threat situation.  In other words, no matter how much jurisdiction EPA and the Corps ended up grabbing or yielding in the rulemaking—and that is a question subject to reasonable disagreement—it might not be the kind of “action” of which NEPA § 102(2)(C) speaks.  Several challenges to agency actions analogous to this rulemaking have been denied on such grounds.  See, e.g., Wildlaw v. US Forest Service, 471 F. Supp.2d 1221 (M.D. Ala. 2007); Sierra Club v. Bosworth, 510 F.3d 1016 (9th Cir. 2007).

Incidentally, the “record” in the consolidated petitions for review will be determined by the Sixth Circuit panel hearing the case as 28 U.S.C. § 2112(b) clearly vests the court with the discretion to hear parties’ motions to expand whatever record the agencies file from the rulemaking proceeding.  That’s supposing the agencies themselves don’t elect to put this correspondence in the administrative record (they might well do so preemptively).

In the district court cases, things are a little harder to forecast.  As we’ve explained on our Wiki, NEPA cases are a disproportionate share of the relatively rare instances where district courts “supplement” an administrative record on the theory that it’s missing something.

If that happens, it’ll signal that the reviewing court is keen to hear more about the inter-agency scuffle which preceded finalization of the WOTUS rule.  And also that NEPA may play a leading role in the future of the nation’s waters.

{Image: an upland ditch that no version of the WOTUS rule ever even purported to cover.}

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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