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Little Streams and Legal Transformations Utah Law Review Volume 2017 | Number 1 Article 1 2017 Little trS eams and Legal Transformations Dave Owen University of California, Hastings College of the Law Follow this and additional works at: http://dc.law.utah.edu/ulr Part of the Environmental Law Commons, and the Natural Resources Law Commons Recommended Citation Owen, Dave (2017) "Little trS eams and Legal Transformations," Utah Law Review: Vol. 2017 : No. 1 , Article 1. Available at: http://dc.law.utah.edu/ulr/vol2017/iss1/1 This Article is brought to you for free and open access by Utah Law Digital Commons. It has been accepted for inclusion in Utah Law Review by an authorized editor of Utah Law Digital Commons. For more information, please contact [email protected]. LITTLE STREAMS AND LEGAL TRANSFORMATIONS Dave Owen* TABLE OF CONTENTS INTRODUCTION .......................................................................................................... 2 I. THE BIG IMPORTANCE OF LITTLE STREAMS ......................................................... 6 A. The Functions of Little Streams ....................................................................... 7 1. Conveying Water .......................................................................................... 7 2. Nutrients, Sediment, Chemistry, and More .................................................. 8 3. Biodiversity ................................................................................................ 10 B. The Threats, and Their Implications ............................................................. 11 II. THE LEGAL EVOLUTION .................................................................................... 15 A. Statutory Origins and Regulatory Exemptions .............................................. 15 B. The Wetlands Era .......................................................................................... 23 C. The Emergence of Stream Protection ............................................................ 27 1. Changing Permit Thresholds ..................................................................... 28 2. Mountaintop Removal ................................................................................ 31 3. The Emergence of Stream Compensatory Mitigation ................................ 34 D. Unfinished Work ........................................................................................... 40 1. Mitigation Troubles ................................................................................... 40 2. Beyond the Stream Channel ....................................................................... 44 III. LESSONS FROM LITTLE STREAMS .................................................................... 45 A. Government Agencies as Engines of Reform ................................................. 46 B. Beyond Zero-Sum .......................................................................................... 49 C. The Alternative History of Environmental Law ............................................ 52 CONCLUSION ........................................................................................................... 55 * © 2017 Dave Owen. Professor of Law, University of California, Hastings College of the Law. I thank the University of Utah School of Law for inviting me to deliver the lecture upon which this article is based; Ann Carlson and her seminar students, the Berkeley Law environmental law faculty and their seminar students, participants in a faculty workshop at the University of San Francisco, and David Takacs for helpful comments on earlier drafts; and Samantha Adhikari for research assistance. I also thank William James and Andy Mergen for helping facilitate interviews; Kaitlyn Husar, Shri Nageshvari Verrill, and, particularly, Andrew Hill for transcription assistance, and the many people who volunteered to be interviewed. Research for this article was supported by National Science Foundation award EPS-0904155 to Maine EBSCoR at the University of Maine, by the University of Maine School of Law, and by the University of California, Hastings College of the Law. 1 2 UTAH LAW REVIEW [NO. 1 INTRODUCTION On May 27, 2015, the United States Army Corps of Engineers (the Corps) and the United States Environmental Protection Agency (EPA) released a rule defining the boundaries of federal jurisdiction under the Clean Water Act.1 In other words, the Clean Water Rule, as the EPA and the Corps labeled it, helps determine which aquatic resources can be protected by the Clean Water Act and which cannot. In many circles, the immediate reactions were apoplectic. Industry opponents warned of dire consequences.2 Conservative politicians maligned the Clean Water Rule as, in Congressman John Boehner’s words, “a raw and tyrannical power grab that will crush jobs . and places landowners, small businesses, farmers, and manufacturers on the road to a regulatory and economic hell.”3 The House of Representatives passed a bill that would set the whole rule aside.4 Dozens of states, along with a wide variety of industry and advocacy groups, sued to challenge the rule; one set of cases soon generated a nationwide stay.5 Environmental groups sued as well, on the theory that the new rule is not protective enough.6 Before the 2016 election, many legal commentators expected some of the challenges to reach the U.S. Supreme Court, which helped set the rulemaking in motion with two previous decisions on Clean Water Act jurisdiction.7 After the election, it seems more likely that the incoming 1 News Release, EPA, Clean Water Rule Protects Streams and Wetlands Critical to Public Health, Communities, and Economy (May 27, 2015), https://www.epa.gov/newsreleases/clean-water-rule-protects-streams-and-wetlands-critical- public-health-communities-and [https://perma.cc/72QU-36WY]. For the actual rule (as it was later published in the Federal Register), see Clean Water Rule: Definition of “Waters of the United States,” 80 Fed. Reg. 37,054 (June 29, 2015). 2 See, e.g., Am. Farm Bureau Fed’n, Clean Water Act, WOTUS, FARM BUREAU, http://www.fb.org/issues/regulatory-reform/clean-water-act/ [https://perma.cc/B2X9- JM2C] (last visited Jan. 8, 2017) (containing materials posted by the American Farm Bureau Federation); Justin Sykes, New Obama EPA Water Rules Set to Drown Property Rights, Economic Growth, AM. FOR PROSPERITY (June 16, 2014), http://americansforprosperity.org/ article/new-obama-epa-water-rules-set-to-drown-property-rights-economic-growth [https://perma.cc/XRG9-QJ2P]. 3 Press Release, Speaker Paul Ryan’s Press Office, Speaker Boehner on the Latest EPA Power Grab (May 27, 2015), http://www.speaker.gov/press-release/speaker-boehner-latest- epa-power-grab [https://perma.cc/MTS6-P8F8]; see also, Jennifer Yachnin, House Republican Compares WOTUS to Terrorism, the Plague, GREENWIRE (Nov. 23, 2015), http://www.eenews.net/greenwire/2015/11/23/stories/1060028451 [https://perma.cc/5WP9- DYP7]. 4 Regulatory Integrity Protection Act of 2015, H.R. 1732, 114th Cong. (2015). 5 Timothy Cama, 27 States Challenge Obama Water Rule in Court, HILL (June 30, 2015, 12:02 PM), http://thehill.com/policy/energy-environment/246539-27-states- challenge-obama-water-rule-in-court [https://perma.cc/ZTK9-R6VG]. 6 Press Release, Center for Biological Diversity, Lawsuit Challenges Loopholes in New EPA Rule Exempting Wetlands and Streams From Clean Water Act Protections (July 22, 2015), http://www.biologicaldiversity.org/news/press_releases/2015/clean-water-act-07-22- 2015.html [https://perma.cc/4W73-FN8C]. 7 Rapanos v. United States, 547 U.S. 715, 756–57 (2006); Solid Waste Agency of N. 2017] LITTLE STREAMS AND LEGAL TRANSFORMATIONS 3 Trump Administration will attempt to withdraw the rule. According to the EPA and the Corps, the rule itself would not actually change very much; the agencies predict “an approximate 3 percent increase in assertion of jurisdiction when compared to 2009-2010 field practice.”8 But much of the rhetoric has been apocalyptic. It would be easy to react to all of this by yawning. Nearly any federal environmental initiative now provokes a similar reaction. Indeed, just a few months later, the EPA released another major rule, this one governing greenhouse gas emissions, and the same doomsday warnings and press releases all trotted out again, followed nearly immediately by bills and lawsuits.9 We live, it sometimes seems, in an era when environmental policymaking resembles trench warfare, with zero-sum legal battles playing out over every major initiative, and with very little apparent movement. Within academic circles, lamenting these circumstances has become almost cliché. Accounts of the increasing polarization of environmental politics, and of gridlock, ossification, and logjams, are common, as are wishful comparisons to the 1970s, a time when environmental legislation emerged from Congress quickly and with bipartisan support.10 We have been stuck, it seems, and the contrast between an ostensibly modest water quality rule and its outraged reception is just another reminder of the reasons why. This Article does not dispute the accuracy of that narrative, at least in some circumstances. But in the arenas governed by the Clean Water Rule, policy actually never got stuck. It has been evolving in consequential ways. The Clean Water Rule defines the geographic scope of several regulatory programs, one of which governs discharges of dredged or fill material into “waters of the United States.”11 That Cook Cty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 172–73 (2001). 8 U.S. EPA & U.S.
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