The Arizona District Court’s WOTUS Ruling and What It Means For The Water Resources Protection Debate Topic

A few weeks ago, you probably saw headlines like “Federal Judge Strikes Down Trump Rule Governing Water Pollution” (in the New York Times), “Federal judge throws out Trump administration rule allowing the draining and filling of streams, marshes and wetlands” (in the Washington Post), “Judge Ditches Trump’s Dirty Water Rule” (from Earthjustice), and “Ruling Threatens Progress Made in Clean Water Efforts” (from the American Farm Bureau Federation).

I think most debaters immediately recognized that this was an important development, but figuring out exactly what happened and what it means for the high school debate topic has been very confusing. A Colorado Politics headline put it best: “Waters of the US: just what the heck is going on?“.

Below the fold, I will attempt to explain the District Court’s decision, the background information you need to know to understand it, and how it will affect affirmative and negative arguments on this year’s water resources protection topic.

WOTUS Background

Students who attended a summer debate institute have likely studied the “Waters of the United States” controversy rather extensively. As a refresher, it refers to the scope of that important but undefined term in the Clean Water Act.

Prior to 1972, federal authority to regulate water pollution extended only to waters used by vessels for interstate commerce. This made intuitive sense because the federal government’s authority to regulate derived from the Commerce Clause.

The Clean Water Act instead established that federal jurisdiction extended to “navigable waters,” which it defined as “waters of the United States, including its territorial seas.” Because the term “waters of the United States” was not defined in the statute, its meaning has remained a persistent controversy ever since.

In what follows, I will briefly summarize the relevant background information that students need to know in order to understand the Arizona District Court’s decision and its ramifications. Students seeking a more thorough review of the issue should read the following Congressional Research Service Reports:

The first report in that list includes this helpful timeline graphic explaining how the definition of “waters of the United States” has evolved:

The graphic ends as the Trump Administration began formulating and promulgating what became known as the Navigable Waters Protection Rule (also colloquially known as the Dirty Water Rule, in contrast to the Obama Administration’s Clean Water Rule). It was published on April 21, 2020 and significantly re-defined “waters of the United States.” Under the Trump rule, the term meant “the territorial seas and traditional navigable waters; perennial and intermittent tributaries that contribute surface water flow to such waters; certain lakes, ponds, and impoundments of jurisdictional waters; and wetlands adjacent to other jurisdictional waters.

Here’s how CRS summarized the rule:

This was a significant departure from the Clean Water Rule established by the Obama Administration in 2015. Here’s how CRS summarized the Obama rule:

And here’s how CRS summarized the differences between the two rules:

Criticism of the Navigable Waters Protection Rule was harsh, and the Biden Administration announced in June their intention to replace it in order “to better protect our nation’s vital water resources that support public health, environmental protection, agricultural activity, and economic growth.” However, the process for doing that is more difficult and time-consuming than one might think.

Meanwhile, several legal challenges to the rule have been playing out in court. That’s where the recent Arizona District Court ruling comes in.

The Arizona District Court Ruling

In Pasqua Yaqui Tribe, et al. v. U.S. EPA, et al., the Pascua Yaqui Tribe, Quinault Indian Nation, Fond du Lac Band of Lake Superior Chippewa, Menominee Indian Tribe of Wisconsin, Tohono O’Odham Nation, and Bad River Band of Lake Superior Chippewa challenged the Navigable Waters Protection Rule on the grounds that it was “arbitrary and capricious in violation of the Administrative Procedure Act” because it “disregards established science and the advice of the Agencies’ own experts.” Judge Rosemary Márquez agreed; she vacated the rule because it includes “fundamental, substantive flaws that cannot be cured without revising or replacing” it. Specifically:

IT IS ORDERED that the Agency Defendants’ Motion for Voluntary Remand (Doc. 72) is granted to the extent it requests voluntary remand of the Navigable Waters Protection Rule.

IT IS FURTHER ORDERED that the Navigable Waters Protection Rule is vacated and remanded for reconsideration to the United States Environmental Protection Agency and the United States Army Corps of Engineers. Counts I through IV of Plaintiffs’ Complaint (Doc. 1) are dismissed.

IT IS FURTHER ORDERED that all other pending Motions (Docs. 47, 75, 77, 79) are denied without prejudice.

IT IS FURTHER ORDERED that within thirty (30) days of the date this Order is filed, the parties shall file a proposal or proposals for further proceedings concerning Plaintiffs’ challenge to the 2019 Repeal Rule in Count V of the Complaint.

Dated this 30th day of August, 2021.

What does this mean from a policy perspective? That question had been surprisingly difficult to answer until the Environmental Protection Agency updated the “Current Implementation of Waters of the United States” page of its website:

The Environmental Protection Agency and U.S. Army Corps of Engineers (the agencies) are in receipt of the U.S. District Court for the District of Arizona’s August 30, 2021, order vacating and remanding the Navigable Waters Protection Rule in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection AgencyIn light of this order, the agencies have halted implementation of the Navigable Waters Protection Rule and are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime until further notice. The agencies continue to review the order and consider next steps. This includes working expeditiously to move forward with the rulemakings announced on June 9, 2021, in order to better protect our nation’s vital water resources that support public health, environmental protection, agricultural activity, and economic growth. The agencies remain committed to crafting a durable definition of “waters of the United States” that is informed by diverse perspectives and based on an inclusive foundation.

The Biden Administration could still appeal Judge Márquez’s decision, especially as it relates to the legitimacy of nationwide vacatur; they have until September 30th to decide how to proceed. In the meantime, the EPA will adopt the pre-2015 definition of “waters of the United States.” Three attorneys at Adams and Weese explain in JD Supra:

It is clear that the EPA now considers both the Trump-era and Obama-era WOTUS rules to be vacated, and intends to enforce the CWA using the 2008 “Rapanos Guidance” issued by the Bush Administration following the Supreme Court’s decision in Rapanos v. United States, 547 U.S. 715; 126 S.Ct. 2208; 165 L.Ed.2d 159 (2006). However, whether this action is premature remains to be seen, since the Arizona District Court ruling will inevitably be appealed. Only a few years ago, the nation was experiencing the impractical effect of split decisions from federal judges over the Obama-era WOTUS rule, resulting in 22 states using the 2015 Obama rule and 28 states using the Rapanos Guidance. Should the Arizona District Court ruling be overturned–or even stayed on appeal–the effect on the practical application of the CWA will once again be confusing, to say the least.

This seems to be the consensus understanding among legal experts. An article from E&E News quotes a former EPA attorney:

“The immediate effect is a nationwide vacature of the 2020 rule,” Mark Ryan, a former EPA Office of Water attorney, said in an email. “There will be an appeal. Assuming the judge’s order is not stayed on appeal, then EPA will not have to go to the trouble of repealing the 2020 rule, and can move straight to drafting the new rule (which is almost certainly underway already).”

The ruling means EPA and the Army Corps of Engineers revert to implementing a 1986 regulation as interpreted by the 2008 guidance written by the George W. Bush administration to determine what qualifies for federal protection as “waters of the United States” under the Clean Water Act, according to legal experts.

An article from three Bracewell attorneys in the National Law Review offers a slightly different prediction about what’s next:

Although the Administration opposed remand with vacatur, the decision in Pasqua Yaqui is consistent with this administration’s long-term goals for the redefinition of WOTUS. In fact, the EPA and Corps announced their intention to proceed with a two-step rulemaking: step one would return the definition of WOTUS to its longstanding pre-2015 definition as modified by SWANCCRapanos, and agency guidance, and step two would build on that regulatory foundation. Although EPA has announced that the agencies have halted implementation of the NWPR in light of the Pasqua Yaqui vacatur—and arguably could skip right to a step two rulemaking—the agencies have indicated that they will still pursue both rulemakings as announced in the July press release. 

So while it is important to pay attention to continuing developments, it seems likely that the Bush Administration’s Rapanos-inspired definition of “waters of the United States” will be used for the foreseeable future.

What Does This Mean For Debates?

The WOTUS affirmative was the most popular case at summer institutes. Typically, its advantages were a mix of “Navigable Waters Protection Rule Bad” arguments, “Clean Water Rule Good” arguments, and process-based arguments about how the Navigable Waters Protection Rule should be replaced.

After Judge Márquez’s decision, the “Navigable Waters Protection Rule Bad” advantages are no longer viable because the EPA is no longer enforcing it. The negative will persuasively argue that the status quo will avoid the worst case predictions about the Trump rule’s impact on wetlands.

To retain their “NWPR Bad” advantages, the affirmative could argue that Márquez’s decision will be appealed and overturned by the Ninth Circuit Court of Appeals (unlikely) or Supreme Court (possible). However, my assessment of the available evidence is that neither of these outcomes is likely; the negative should be prepared to produce evidence that the decision will be upheld. In a debate between two well-prepared opponents, I think the negative will win that the NWPR will never take effect again.

The affirmative’s “Clean Water Rule Good” advantages are also somewhat weaker. The baseline of comparison for determining the benefits of the Clean Water Rule is now the 2008 Bush Administration rule, not the Trump rule. While the Bush rule is significantly weaker than the Obama rule, it is not as weak as the Trump rule. Here’s how CRS explains the Bush rule:

Because the Clean Water Rule was developed to address perceived shortcomings in this Rapanos-inspired rule, the affirmative can still claim significant advantages from reinstating it. However, the best affirmative evidence will now compare the Clean Water Rule to the 2008 Bush rule, not to the Navigable Waters Protection Rule. For that reason, older articles from the mid-2010s (when the Clean Water Rule was being considered) might now be more valuable than 2020 and 2021 articles that criticized the Trump rule. More recent evidence will need to be re-cut to emphasize the benefits of stronger regulations compared to the 2008 baseline, not compared to the NWPR.

Based on this analysis, one might be tempted to think that the Márquez decision is “bad for the aff.” After all, it takes out a significant chunk of the advantages that were written at camp and weakens most of the others.

On the contrary, I think the Márquez decision is actually much more strategically harmful for the negative. The WOTUS affirmative remains strong; the case for the original creation of the Clean Water Rule was compelling. While Trump’s policy was particularly harmful, many critics of the 2008 definition of “waters of the United States” believe it leaves vital water resources unprotected. As long as the affirmative updates their arguments to reflect the new legal landscape (as Carrollton Sacred Heart has done, for example), WOTUS will remain a strong case.

The decision’s greater impact will be to undermine negative arguments about certainty, predictability, and the limited scope of federal water regulations. “NWPR Good” was an important foundation of many negative arguments; it arguably established (relative) certainty about federal regulations and was supported by many industries. Now, that foundation of predictability has ended.

Affirmative teams will be able to read strong evidence to make this argument. For example, here’s what three attorneys at Sheppard Mullin Richter & Hampton wrote in JD Supra:

The status of the NWPR nationwide is complex and unclear. Shortly after the decision in Pasqua Yaqui was announced, the U.S. District Court for the District of Massachusetts remanded a similar challenge without vacating the rule as “the most prudent step” given ongoing related litigation. In July, the U.S. District Court for the District of South Carolina remanded a challenge to the NWPR without vacatur. The U.S. District Court for the District of New Mexico is currently considering competing requests to remand the NWPR with and without vacatur. And the Tenth Circuit Court of Appeals, which covers much of the arid West, recently reversed a Colorado district court decision enjoining the NWPR. The federal government could attempt to limit the effect of the Pasqua Yaqui vacatur order to Arizona, as it has done with similar rulings in the past, but potential appeals could further complicate the picture. When the dust settles, different parts of the nation may be left with different rules while the Corps and EPA work on a new definition of waters of the United States that is, in turn, certain to face legal challenge, continuing the regulatory uncertainty that has existed at least since the 2015 Clean Water Rule faced a barrage of lawsuits with varied outcomes.

An article in Bloomberg makes similar arguments:

A federal court ruling tossing out a Trump-era rule defining waters of the United States is fueling even more uncertainty about federal wetlands jurisdiction and puts possibly hundreds of projects in legal limbo, lawyers say.

The decision in Pasqua Yaqui Tribe v. EPA is the latest twist in a decades-long tug-of-war over how to define WOTUS under the Clean Water Act, which determines how wetlands can be developed. It instantly touched off debates over how widespread it will be applied.

It could set off a cascade of lawsuits to the ruling itself, and possibly to future WOTUS definitions, said Dave Owen, an environmental law professor at the University of California-Hastings College of the Law.

The construction industry and farmers may be the businesses most affected by the ruling, but ecosystems are likely to be the biggest beneficiaries, including Georgia’s Okefenokee Swamp. A titanium mine is planned to fill wetlands nearby, possibly threatening the hydrology of the swamp itself.

But the ruling is poised to throw agriculture into turmoil, Zippy Duvall, president of the American Farm Bureau Association, said in a statement.

“Farmers finally had environmentally responsible regulations that brought clarity to clean water efforts,” Duvall said. “This ruling casts uncertainty over farmers and ranchers across the country and threatens the progress they’ve made to responsibly manage water and natural resources.”

These arguments won’t just help affirmative teams defend the WOTUS case. They will also make it difficult for the negative to win uniqueness and link uniqueness for their “regulations bad” disadvantages against every case, including arguments about business confidence, specific industry growth, and federalism. The Biden Administration’s earlier announcement that it intends to craft a new “waters of the United States” definition could be dismissed by the negative as a long-term issue that industry could shape through the rulemaking process. Now, the uncertainty and confusion is immediate.

As they prepare to adapt their arguments to the Márquez decision, negative teams should consider a few approaches. First, they can argue that the repeal of the Trump rule was expected. While the Arizona District Court decision happened sooner than most observers anticipated, there was already a general consensus that the rule would eventually be replaced. While the affirmative can produce evidence with hyperbolic quotes from industry lobbyists, how much has actually changed? Maybe a lot, but the negative should attempt to defend that the reaction to the Márquez decision has been overblown.

Second, they can argue that the Biden Administration’s replacement rule will be relatively industry-friendly. There was already some indication that this might be the case before the Márquez decision, so negative teams should be able to produce relatively strong evidence to support this argument. If Biden’s replacement rule is not nearly as broad as Obama’s Clean Water Rule, disadvantages to over-broad federal regulations might still be unique.

Against cases that propose reinstating the Clean Water Rule, the negative can also defend the 2008 Bush rule by cementing it in statute with a counterplan; this would functionally stop the Biden Administration’s planned rewrite of the rule. This type of counterplan would arguably restore a sense of predictability and industry confidence about the scope of federal regulations. Combined with disadvantages to the Clean Water Rule — again, based especially on evidence from the mid-2010s when the Clean Water Rule was first discussed and debated — this could be a strong negative strategy.

This kind of counterplan might also be helpful against other cases. However, the negative will need to be careful to build a strategy whose pieces fit together. I can imagine many circumstances in which the affirmative might persuasively argue that a permutation (the plan and the “cement Rapanos in statute” counterplan) shields or avoids the link to a “regulation bad” disadvantage. Against some (especially smaller) cases, that counterplan might be “too strong” (from an industry perception sense in particular) to be strategically useful.

Against the WOTUS case, the negative might also choose to reinstate and defend the NWPR, perhaps including by cementing it in statute. While this strengthens the affirmative’s advantages, it also strengthens the negative’s disadvantages. This might be the most strategic option for a negative team that was prepared to defend the status quo from before the Márquez decision; it essentially “turns back the clock” and resets the debate.

The “reinstate the NWPR” counterplan might also be worth considering against other cases. As with the “cement Rapanos in statute” counterplan, though, there might be concerns about a permutation avoiding the link to the net-benefit.

Conclusion

The Márquez decision has had a significant impact on the water resources protection debate topic. While it will force both sides to adapt and adjust their arguments, I think the affirmative has the much easier path. Although the “Navigable Waters Protection Rule Bad” version of the WOTUS case is no longer viable, the “Clean Water Rule Good” version remains an excellent affirmative option. For the negative, the decision has undermined the uniqueness of many core generic arguments. In response, negative teams will need to update and revise their positions. I think (and hope) that this will be challenging but not impossible.

As the news coverage about the decision has revealed, this is a complicated subject that can be confusing even for experts in the field. I hope this article has been a helpful guide for debaters as they research the decision and start to make the necessary adjustments to their arguments.

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