The Supreme Court’s last determination of what wetlands are subject to the Clean Water Act and hence may not be filled without a permit left behind a matted mess. In Rapanos v. United States, the 4-1-4 opinion, articulated two tests for when a wetland constitutes a water of the United States. In the plurality opinion, wetlands must have “a continuous surface connection to bodies that are waters of the United States.” Justice Kennedy’s swing vote decision for the plurality’s remand, stated that, while there needed to be a connection, it would be sufficient if there was a “significant nexus” with the waters of the U.S.; that is, it would be sufficient if the wetlands, alone or in combination with other lands in the region, would significantly affect the chemical, physical and biological characteristics of the U.S. waters. So which test should be applied?
Since Rapanos, the Seventh and Eleventh Circuits have found that Justice Kennedy’s test must be met, under a weakest-link theory – it is the narrowest grounds for the Supreme Court’s decision in Rapanos. On the other hand, the First, Eighth and recently the Third Circuits have held that if the wetlands can meet either test set forth in Rapanos, then the fill would be in violation of the Clean Water Act.
In order to "clarify" things, EPA and the Corp of Engineers issued a proposed guidance document, to help identify waters subject to Clean Water Act jurisdiction The Agencies added that the proposed guidance would result in more waters being brought within their jurisdiction - a statement that is the political equivalent of poking a bear with a stick. Predictably, the proposed guidance quickly came under attack as being an attempt by EPA and the Corp to expand their jurisdiction and to promulgate rules without following proper procedure.
The "clarification" guidance also did not sit well with several Republican members of Congress -- John Mica, Bob Gibbs, James Inhofe and Jeff Sessions. On November 8, 2011, these four Congressmen wrote a letter to EPA and the Army Corps of Engineers. They noted that EPA had apparently decided not to finalize the draft guidance but, rather, that the Agencies were planning to address the scope of CWA jurisdiction via rulemaking. The authors commended the agencies for deciding to follow the rulemaking procedure, but lamented that if they were simply going to incorporate the guidance documents into the rule, the Agencies had effectively (and improperly) prejudged the issue, particularly given their view that the guidance “misconstrues or manipulates the legal standards announced in the Supreme Court decisions.”
The letter goes on to “encourage” the agencies to start the rulemaking process fresh, open the matter to an advanced notice of proposed rulemaking to obtain public input, and to do a cost-benefit analysis of whatever proposed rule is developed. The authors sincerely hoped that the agencies would not make a “mockery of the rulemaking process under the Administrative Procedure Act.”
Perhaps there is more to the letter than a gentle reminder that the Agencies shouldn't consider mocking the law. If EPA promulgates the rule rather than issues a guidance, the inevitable challenge will be much more difficult because of the deference (frequently referred to as Chevron deference) that will attach to the rule. Deference is a powerful weapon in any agency's arsenal and anyone who seeks to diminish the power of an agency would do well to find a way to challenge that deference. In this case, the letter is preemptively making the case that if the final rule looks like the guidance, it proves that EPA prejudged the outcome, that the rule should be thrown out and that it would be a "mockery" to allow deference to save it. Given the recent decisions regarding agency deference, it just might work. And if it does, letter-writing will be back in vogue.