WASHINGTON, Feb. 15, 2017 - Court fights over the scope of the government’s authority under the Clean Water Act are likely to increase during the Trump administration, attorneys who specialize in CWA law said at a conference in Washington last week.               

“It does seem like we’re headed into a place where we have even more litigation,” said Jan Goldman-Carter, director of wetlands and water resources at the National Wildlife Federation’s National Advocacy Center.

Neal McAliley, with the Carlton Fields law firm in Miami, agreed. “I think there’s going to be an increasing focus on the courts,” he said. Both spoke at the annual American Law Institute-American Bar Association conference on environmental law.

Part of the reason for that is the Supreme Court’s decision last year in Hawkes v. U.S., in which the court found that landowners seeking a CWA permit could challenge the Corps’ initial finding in that process – whether the land in question contains a jurisdictional “water of the U.S.”

The Corps had argued that such jurisdictional determinations, or JD’s, were not legally reviewable until the Corps made a final permit decision.

The Hawkes plaintiffs recently won the final legal showdown in their longstanding attempt to expand their peat mining operation in Minnesota, when a district court judge concluded the Corps could not show there was enough of a connection between waters on the property in question and the nearest navigable water.

The WOTUS rule has been embroiled in controversy since it was released in May 2015 and published a month later. Major farm groups, which claim it would expand the government’s reach to include puddles on farmland, quickly joined lawsuits seeking to overturn it, and the rule was stayed by the 6th Circuit Court of Appeals in October 2015.

Last month the Supreme Court stepped into the fight, granting a petition filed by the National Association of Manufacturers to clarify where challenges to the rule should be heard – in federal district courts or in the courts of appeals. The 6th Circuit said the CWA itself was not clear but that legal precedent dictated the case be heard in the circuit court.

The high court will have to look at the CWA and congressional intent in deciding where challenges to WOTUS should be filed. Meanwhile, the question of whether the WOTUS rule itself is legally justified will remain.

That’s because the Supreme Court decided to review just “this narrow jurisdictional issue,” McAlilely said, “We’re probably not going to get to the merits until some time a year from now, or maybe more.”

In the meantime, environmental groups are likely to use the courts to try to enforce Clean Water Act protections, Goldman-Carter said.

“In order to actually protect resources that are fundamental to achieving the goals of the Clean Water Act, I feel we may have no choice but to bring citizen suits to protect those key resources,” she said, but added, “We do need to be very strategic about the fact-situations in which those suits are brought.”

She said she’s worried that Congress will step in to explicitly limit government authority to protect waters.

“I think we’re going to see efforts to scale back the Clean Water Act on a number of fronts,” she said. However, she noted “there is huge public support for clean water and for the Clean Water Act” and predicted “a fair amount of pushback” if there are attacks on the CWA.

McAliley said that legislation “would obviously lead to the most long-lasting changes to the (law) but also, historically, this has been the hardest to accomplish for either party.”

A more likely scenario, he said, is that the administration will wait for the Supreme Court to decide the issue of legal jurisdiction. “If I were them, I’d wait till the Supreme Court decides the jurisdictional issue; at least get that resolved so you know where the next challenge is going to be coming from,” he said.

The administration could seek to have the rule remanded and then vacate it, but then, “You’re left with this old regulation from the 1980s, which on its face is very broad.”

If WOTUS were no more, the Trump administration could propose a new rule, but that raises a whole new set of issues.

“This approach would clearly allow the agencies to have a WOTUS rule that is much narrower than either the 2015 WOTUS rule or the 1980s-era regulations,” he said. But “one of the challenges would be they would have to overcome the technical and legal record developed by the Obama administration.”

In addition, he said, “A rulemaking would take years to complete.” In order to develop a rule that would withstand legal challenge, “It’s going to take time. And then when they file rulemaking, the opposition’s going to file lawsuits, too.”

“I don’t think it’s going to be easy for them to go back and write a rule consistent with the Clean Water Act that is responsive to the extensive underlying science and law,” Goldman-Carter said.

Another possibility is that states will step in to assume authority over the CWA Section 404 program, which includes wetlands permitting.

“I think there certainly is a lot of buzz about turning over the program,” Goldman-Carter said, noting the “pro-states rights” bent of prospective EPA Administrator Scott Pruitt.

Only two states, Michigan and New Jersey, have taken over 404 permitting responsibilities. “State assumption has very rigorous requirements,” she said. “It will not be that easy for a state to take over.”

Another option for the Trump administration is simply to scale back the 404 program. “I think that’s probably going to happen,” McAlilely predicted, and Goldman-Carter said she was concerned that a lack of resources will hinder the Corps’ ability to generate scientifically defensible jurisdictional determinations.

“I’m concerned, and Hawkes is a good example of this, where agency’s JDs are not going to be based on enough scientific evidence because of a pure lack of resources if nothing else,” Goldman-Carter said. That could put federal courts in the position of deciding wetlands jurisdiction “without much of a record.”

“I don’t believe the courts are equipped to be making those kinds of decisions,” she said.