Federalism, Regulatory Architecture, and the Clean Water Rule: Seeking Consensus on the Waters of the United States

Abstract

This article reviews the troubled history of the “Waters of the United States” Rule of the Clean Water Act, and analyzes how its newest incarnation harnesses a surprising point of convergence between the conflicting Supreme Court interpretations in Rapanos v. United States that necessitated its development. While debate over the federalism implications of the Rule rages on, the framework it creates from the multiple Rapanos opinions suggests that the path forward hinges less on the substantive rule of jurisdiction and more on the regulatory architecture of presumptions, default rules, and burden shifting. Splitting the difference between competing judicial approaches, the new Rule alternates presumptions in favor of and against federal regulation in different hydrological contexts to appropriately support competing regulatory goals. By capitalizing on an elusive thread of continuity among seemingly irreconcilable judicial viewpoints, the new Rule may win safe passage through the next round of judicial review.

The Waters of the United States Rule has long interpreted the part of the Clean Water Act that establishes the breadth of American waterways subject to federal protection under the Act. Despite decades of litigation and regulatory efforts at clarification, it remains one of the most persistently uncertain exercises of national regulatory jurisdiction in any field. In 2015, following the most recent round of judicial upheaval and responsive political wrangling, a new version — the “Clean Water Rule” — was finally promulgated. The new version responds directly to the vexing questions left open by earlier judicial interventions. Seeking compromise between extremes, it clarifies limits on federal reach while remaining grounded in the best available science. It reduces the need for case-by-case analysis in some contexts while preserving it in others, mitigating the uncertainty that has undermined the regulatory process while preserving flexibility to cope with harder calls. Nevertheless, the rule was stayed nationwide only days after it took effect, pending litigation by multiple states. Unsurprisingly, uproar over the reach of the Rule continues, and it will likely press on until the Supreme Court visits the issue yet again.

If the Court takes the case, however, the justices will be reviewing a rule that responds directly to the mixed messages they sent the agencies during the infamously fractured Rapanos decision — in which the Court split five ways in its attempt to establish the appropriate boundaries of federal reach. Most notably, the Rule exploits a convergence between the Kennedy concurrence and Stevens dissent — which create similar substantive rules of jurisdiction, but effectively allocate the burden of proof differently by establishing opposite presumptions in marginal cases. Striving for a workable regulatory compromise, the new Rule incorporates alternating defaults in different contexts — highlighting how sophisticated legal architecture can create improbable common ground from seemingly irreconcilable political dissensus. This analysis also reveals how the debate over federalism may be giving way to one over regulatory architecture. The new Rule shows that the substantive rule of jurisdiction may no longer be the primary obstacle for a majority of the Court, shifting instead to identifying who must show when that jurisdictional standard has been met. While it may not be the best choice from any given perspective, the new Rule capitalizes on the best possible common ground among them. For that reason, and for the wisdom of its politically necessary compromise, the Rule warrants both deference and respect.

Keywords: Clean Water Rule, Clean Water Act, wetlands, Waters of the United States, Supreme Court, Rapanos, federalism, jurisdiction, default rules, burden shifting, regulatory architecture