Matt Leopold

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Welcome to Water for Fighting, where we discuss the past, present, and future of water in Florida, what the people will make it happen. I’m your host, Brett Cyphers. This week’s discussion is brought to you by Sea and Shoreline and Resource Environmental Solutions.(…) Sea and Shoreline is a Florida-based aquatic restoration firm that’s on a mission to restore Florida’s water bodies and to protect our coastline communities against severe storms. You can check out their projects at seaandshoreline.com.(…) And of course, REZ. REZ is a national leader in ecological and hydrological restoration, offering nature-based solutions with guaranteed performance through innovative delivery options. Discover more about their work and commitment to Florida and its environmental challenges by visiting www.res.us.(…) Okay, everyone. I think you’re really going to enjoy this week’s guest, Matt Leopold. Matt has been a litigator with the Department of Justice, General Counsel of the Florida Department of Environmental Protection, and the General Counsel of the United States Environmental Protection Agency. He’s now a partner with Hunt and Andrews’ CURT law firm, and he’s here to help us understand the recent ruling in the Supreme Court case, Sacket v. EPA. But because this is my show, first he has to tell me his life story.

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Matt, thanks for being on Water for Fighting. Alright, let’s get to the hard part.

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You’re born in Illinois, but your parents did the right thing and moved to Florida. I think you said before, it was second grade, is that seven years old? Yeah, that’s about right, exactly. Alright, so are your parents from Illinois?

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Yeah, my dad was born and raised in Illinois,(…) LaSalle, Illinois, which is west of Chicago, a couple of hours out in farm country, and my mom’s from eastern Tennessee. So, I’ve got Midwest and Southeast both in my background. So, let’s pause for a second there with your mom. You said East Tennessee, that is a long way away from western Illinois. How did they meet? They met in college and married in college, and then after living in Tennessee for a little bit, moved to Illinois where I was born in Dixon, Illinois, which is actually Ronald Reagan’s hometown, where he grew up, and that’s what that town is known for. You know, I don’t have many memories of those days, and all my memories, informative years, were in the Tampa Bay area, where dad moved to follow his career as a stockbroker,(…) and I grew up in Palm Harbor, Florida, just north of Clearwater. Right, and that’s in Pinellas County for folks that may not be totally familiar with the area over there. I am a little bit, because I grew up west of there, or sorry, east of there. It’s hard to grow up west of Palm Harbor. Did you live close to the beach, Matt? Not far away. Right down the road was Dunedin Cosway, and so for folks familiar with that area, you might have heard of Caledecia Island or Honeymoon Island, and so I spent many days as a kid going to the beach there, skimboarding, and just spending time outside. That’s funny you mentioned that. When I was a kid, we spent many a summer on Caledecia Island. My grandfather and folks I know from a previous podcast was in the state park service, when he retired from the Navy, and one of his stations was Caledecia Island, and we used to get to spend a bunch of time doing the exact same thing, by the way. It’s like I loved skimboarding when I was a kid. And so I was going to ask how you spent your summer days, but I think I know how now. Was it spending at Caledecia Island on the beach I assumed?

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My background and upbringing was pretty normal in terms of Florida kid. I think lots of time outside, going to the beach, water sports, that type of thing. And also, as I got into middle school, high school, working summer jobs, the first job was at a car wash, and so out in the hot port of sun, washing cars. That taught me a lot about life.(…) Yeah, it does. Was part of that note discovering what you wanted to be when you grew up back then? What did you want to be when you were a kid, when you grew up? Honestly, in those days, I think one of my early jobs was working construction, and I liked carpentry pretty well back in those days. Working with my hands, building things.(…) As I started progressing through school, I think ultimately I realized my gift thing was to lie more in language skills, and English became an area where I excelled. Unfortunately, I have aptitude to argue. So it started to become clear, more in college, that I might be inclined for a legal profession. Let’s start at the beginning there, well, sort of in the middle. You end up graduating from the University of Florida with a degree in history. You go from the obvious linguistic skills and arguing skills that you have now. How did you get from discovering that in high school to a degree in history? Yeah, so I graduated from Tarpen Springs High School, which is the very northern part of Pinellas County. If folks are not familiar with it, it’s just a fantastic part of the state. The Greek community there is very robust and one of the biggest Greek communities in the United States. I think outside of New York and Chicago. So, you know, had a unique experience growing up in Tarpen, or going to school in Tarpen. And then was fortunate to get to go to the University of Florida. I majored in history because, again, studying history and language and those types of things were appealing. I really just picked the major because that’s what I was most interested in. When I graduated, the jobs weren’t necessarily abundant for history teachers.

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So I heard a good joke at the time, Brett, that what did liberal arts majors say after they graduate? You ever heard this one? I don’t think so. I was surprised with that.

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Yeah, yeah, I heard that. I was the same as, but I was the same as you. I was like, I want to study history because I like it. Then you get done. It’s like, oh, my goodness.

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I’m not qualified to do anything other than teach history. Were you at the University of Florida? When did you discover that you wanted to go to law school? Was that something that you knew that you wanted to do after you graduated? Or as you said, when you were talking about at that point of graduation, I was like, I don’t know what I’m going to do. So let me figure out what that next step is. How do you get from UF to now Florida State Law School? There’s a little bit of gap there between, wasn’t there? There was. I was trying to figure out if that’s what I really wanted to do. What I knew after I graduated college is I needed to spend some time checking some things off the list and dreams I had. One of those, so immediately after UF, I got a temporary job working at an insurance company and saved up some money and decided to go travel Europe for a while and do the backpacking thing. I had a great friend of mine who was from Miami and he spoke Spanish. So we went over to Spain and in one of my more interesting moments, he convinced me to run with the Bulls and Pamplona.

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Okay, so how’d that go?

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Well, I’m still here and we survived, right? No one was hurt. So that was good. And we had more stories to tell for sure.

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Did you do the whole white clothes, red handkerchief kind of thing?(…) Yes. Yeah. All that, right? The whole town is dressed in red and white, which was quite something. Wow. So I was checking some things off that list, trying to, and at the same time had decided a career in the law probably was fitted my personality and skills and interests. And so I started applying for law school at the time and I got into FSU, but before I was ready to go and ready to start in the fall, but I had been on submission trips to Nicaragua and Managua through a church that I was attending. And I got a call from one of the contacts down there saying they really needed a teacher to come and teach because someone who had been scheduled to teach had quit and they didn’t have anybody to fill various subjects in their high school in Managua, Nicaragua. So thankfully FSU led me to FUR for a year and I took a detour down to Nicaragua. Talk about some of that. You were,(…) yeah, I mean, you described what the thing that you did, but you and I spoke recently and we got into a little bit of a discussion. We got into a little bit more of the detail on that. It’s a really cool story and it gave you, I think you said it gave you a lot of perspective in terms of the differences between Nicaragua and life in America. Can you talk about that a little bit? Absolutely.(…) It was a real formative experience for me because living in a developing country like that was eye-opening. You know, a lot of people, I think take short-term trips, but when you’re living there for a year or more, you start to really see what poverty looks like and what it’s like to be in another culture that’s, you know, not the United States.

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And you realize how the rest of the world lives. And it makes you very grateful for where you come from, but it also makes you realize that you need to do more and try to help the developing world and to the extent that you can. But the needs are enormous. And I think Nicaragua is the second, the time I was there, the second forest nation in the Western hemisphere behind Haiti. Wow. And so you did an entire year of that. What year was that, Matt? That was 2001. Okay. And so you come back and Florida State, what was life like in law school for you? Did you know that you wanted to get into the environmental side of law while you were in law school? Did you have your mind on that?

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Honestly, no, I was always an outdoors enthusiast, you know, and loved camping, loved nature, wildlife, all of that. It kind of pretty typical interest from folks in our world. But I’d never thought about how to combining that into a career and certainly not a legal career. So I started to learn about environmental law to some degree in law school. But how I fell into it really was through an opportunity that FSU provided. And I will say you haven’t made a joke yet, Brett, but I still cheer for the Gators. Okay. Despite going to law school in Tallahassee and living in Tallahassee for a while. There was a guy by the name of Jim Toohey, who had been the, I think, the Secretary of Florida Department of Health and Human Services under Lawton Childs. And he provided an opportunity for one FSU law student to come up and work with him in the Bush White House. President George W. Bush had appointed him as the Director of the Office of Faith-Based and Community Initiatives. And he allowed the law student to come to a White House internship.(…) And I was chosen for that. And really, that was transformative for me in seeing how Washington works. And particularly, I worked on regulatory issues. Yeah. So not to make the joke, because I like to bring out too much of the seminal breeding into me. My dad was a seminal as well. I know a couple of people that did undergrad at UF, then go to law school at Florida State. And usually they stick with the school, their undergrad school. Two former secretaries I’m thinking of, Noah Valenstein went to UF for undergrad and then law school here in Tallahassee. And he’s a gator. But Ryan Matthews,(…) who did the same thing, is incredibly the seminal part of him stuff. But I think that was something that he had well before he started college anyway. So I thought that. But I think you’re just standard practice, Matt, as well. Yeah. Well, I went to UF in the Danny Borthel year. So it was a pretty good time to be a gator. Yeah, not too shabby. Not too shabby.(…) Okay. So you finished a year in the internship. Was that in the middle of law school or just after law school?

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Yeah, that was during law school. It was the summer of 2004 and just had some incredible experiences there. Most notably, President Ronald Reagan died this summer of 2004 and the state funeral for him was held.(…) And I was there at the White House and had just opportunities to see all of that. And it was incredible. I’ve never seen anything like it. People were lined up on the National Mall. And I think the wait to go see him lying in state was over nine hours or sometimes more. And just an incredible time I saw walking by the window of my office, Michael Gorgoch coming by. So it was kind of a magical experience. But so after it was over, I knew I wanted to go back and really build my career in Washington. So I kind of threw connections in Tallahassee and through connections in Washington. And I heard about an opportunity to work for a Governor Jeb Bush in his Washington, D.C. office.

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And I don’t think that we had met each other at that time, but I did work for Jeb Bush in those days. You said you mentioned you went to the Washington office, the Washington, D.C. office for the governor. It always seemed a bit opaque to me in those days what the office did. Can you talk a little bit about that time there?

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Yeah, and I think that’s right. People vaguely know that Florida has a D.C. office, but a lot of people don’t know what it does. When I was there, and I should know, it’s changed over time. Each governor puts his own mark on it, but it’s changed over time. But I think during the time when I was there, you had, it was very unique, because you had the governor of Florida and the president of the United States being brothers. Florida, I think, had a lot of opportunity to really participate in important policy issues, not only at the state level, but at the national level. And the governor frequently came to D.C., although he didn’t stay at the White House, typically.

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It was interesting. So our office was pretty large because of those unique connections. And it was staffed with policy issue experts from each policy area. And we really reported, we reported to the governor’s office, but also to the state agency. And so my role that I fell into, and this is really where my career in the environment and regulatory space started, was as the environmental policy guy in the D.C. office. And I started working with F.D.E.P. at the time. Folks, people may know, Jennifer Fitzwater and Mike Sowell were at D.E.P. at the time. I want to take just a moment to talk about my friends at REZ. Florida is a treasure trove of natural wonders, but the cost of that treasure is our collective responsibility to restore and protect its ecological and water resources.

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Visit www.rez.us to learn more about REZ and their commitment to creating a resilient future for Florida. All right, let’s get back to the conversation. And so, I mean, talk about a couple of those issues. I think one of them was Governor Bush had been a big fan of the comprehensive Everglades Restoration Program.(…) And I think it was right around that time. Henry Dean was the executive director of the South Florida Water Management District. Like you mentioned, Mike Solow and Jennifer Fitzwater at DEP. There was a big push to accelerate, and I think they actually literally called it that, accelerate those projects. And in the Everglades, but part of that relied on those partnerships with the federal government at that time. Was that something that you were heavily involved in?

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Yes, definitely. And so the secretary of DEP at the time was Colleen Castile, and she was a frequent visitor to Washington, along with folks from the South Florida Water Management District.(…) And the focus was really on making sure that the Fed looked up to their promise to be a 50% participant in Everglades Restoration funding. I still, I don’t know that we’ve gotten there. In fact, the gap is probably even worse today than it was back then. And the Fed still have a lot to do on that commitment in terms of funding.(…) But yeah, it was, that was definitely one of the governor’s priorities, was making sure Everglades Restoration was on track, and the state was getting out ahead, and it was going to get credit in the various funding bills and the Water Resources Development Act. Yeah, I typically use my quote fingers when I say the word partnership as related to the federal government when it comes to the Everglades. And I think you’re right, but I think the state is basically picking up the slack on this end in terms of what they’re trying to do now as well.

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All right, let’s get bored. You’re leaving the Washington office at this point, but you’re staying in D.C. because you pulled a rather long shift at the Department of Justice. You covered a bunch there, I’m sure, over that period of time. And I want you to talk about some of that, but I want you to focus at some point on the Deepwater Horizon and the litigation attached to that. What did that entail? What was your role there? You can talk about the other things, but I do want to hear about the Deepwater Horizon part. Sure.(…) Yeah, so it was, I think 2006, the time in the Washington office was winding down for me. I had started working in that office even before I was while I was studying for the bar and I passed the bar and I realized I had a choice either at this point, am I going to be a real practicing lawyer or am I going to go more of the lobbying policy route? Both were really interesting to me. Both still are interesting to me. And we’ll talk more about that. So I decided, you know, I really need to hone my legal skills as a young lawyer who’s never litigated, who’s never really had an opportunity. And so through a number of things, I’ve applied for various positions at the Department of Justice and I was offered a job with the Environment and Natural Resources Division doing a mix of litigation and policy and regulatory work and supporting the Assistant Attorney General over in the Environment Division. You know, I’ve been fortunate to have a number of things happen in my life that probably don’t deserve, but that was certainly foundational.(…) And I spent six years at DOJ learning how to really be a real lawyer. And as you mentioned, BP was one of those things. Before I hit that, I will mention, I was there, I started DOJ in 2007 and President Bush was still in office in 2007 and 08. I was deployed down to work on some border fence land acquisition cases in South Texas and near Brownsville in McAllen, Texas, where Congress had passed a law to build over 300 miles of fencing by the end of 08. It was a big job to get that land, defend all these environmental lawsuits that were being filed.(…) And so that I was thrown right into the fire on that. And so did you work on the actual lawsuit part after Deepwater Horizon or was it only related to that work in Texas? No. So yeah, the Texas thing, that was the big policy initiative for the Bush administration. And then I was a career lawyer at DOJ. I think folks know the federal government works a bit differently from state government in that you’re either clearly a political appointee of the President or you’re a career employee. And so 2008, President Obama was elected. So we had a new president, new administration.(…) And so the policy priorities were shifting rapidly.(…) And this environment is one of those areas that you know swings pretty dramatically between administrations.

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So I was working on a number of things, just doing legal work. And then in April 2010, we got word there’s a news newsbreaking that, you know, there was an explosion in the Gulf of Mexico, no one knew much about it. But DOJ immediately stood up a team to try to, first of all, assess the issues and we knew it was going to be big. We didn’t know how big. But I was part of a large team at DOJ that was stood up to help investigate the issues and come up with legal theories of liability surrounding the discharges of oil in the Gulf. It started off, I was, there was an administrative investigation by the Coast Guard and the Department of Interior that I started going down to Houston and covering those hearings and then that transformed quickly into a case being filed by private party plaintiffs and the US got involved. And so we were, I was part of the team helping to develop the case and under the Clean Water Act Civil Enforcement Action, which ended up becoming the biggest, I think, piece of certainly environmental case in the US history and I think still has the record for the biggest civil litigation in US history, ultimately resulted in a $20 billion settlement for the states and the federal government. Yeah, I think the benchmark up to that point, I think, was the Exxon Valdez spill up in Alaska. Yeah, it was enormous at that time. That was part of my childhood anyway. And then seeing Deepwater Horizon, that was a big deal. Indeed.

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So when you and I met, you had left the Department of Justice and you end up working as the General Counsel at the Florida Department of Environmental Protection back here in Florida. How did that transition happen, Matt? Yeah, interesting question. So I knew that I was always had had interest in what was going on in Florida and the environmental regulatory space. And we, at the time,(…) I’m trying to remember the year Governor Rick Scott was elected, but I had had some friends who had gone down to work for the Scott Administration. Folks at the time may remember he was heavily recruiting from DC and out other other parts of the country.(…) I was asked, you know, would you be interested in leaving DOJ coming down to work on Florida environmental issues? And, you know, given my prior experience working with the Jeb Bush administration,(…) there was a lot of synergies. And I had a growing family and my wife from the Panhandle in Niceville, Florida, and going back to Tallahassee with young kids just made a lot of sense at the time. I ended up getting the position of General Counsel of DEP under Secretary Hershel Vineyard. You end up leaving, well, you spend, you know, obviously serving, you know, with Hershel under Governor Scott. And you and I met then, it’s like, but you and I spent most of our time after you left DEP. But before that, let’s talk about your time at, a little bit of your time at DEP. What were some of the larger issues on your plate during your tenure there? Yeah, Everglades was still an issue and also the numeric nutrient criteria. From a lawyer’s perspective, it was really a dream job because I got down, Florida was already in the midst of litigation over numeric nutrient criteria. And so there was a federal case challenging that, that I got involved with, you know, the Secretary and the Governor were championing something called restoration strategies, which were trying to resolve the federal water quality criteria issue and additional funding for Everglades restoration. So I supported that effort and I ended up even arguing a case in the, that was with the Mikosuki tribe that had sued the state and the water management district. And I argued a case personally on that. Other things that were happening at the time, you know, drilling in Southwest Florida was a hot issue as well.(…) And so there was a lot of activity around that.

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Let’s pause on the, to go back just a second on the numeric nutrient criteria. At the time, it was a bit uncommon. Yes. In terms of using numeric nutrient criteria? Yeah. It’s something that EPA doesn’t do all that often is make what they call it necessity determination under the Clean Water Act that a narrative criteria, which most states have in their state programs, is insufficient to protect the natural resources and water resources. And then, you know, actually at the tail end of the Bush administration, the outgoing EPA assistant administrator issued this determination.(…) And once that was issued, EPA had to follow up on that. And the Obama administration started promulgating rights and rules around that. So, and there was a lot, we could have a whole podcast on that as you know. Yeah, for sure. And maybe we’ll have to bring you back just on that side because there are a lot of, and I’m going to, I am going to use the metaphor downstream impacts of that ruling for Florida. And we can agree or disagree as to the benefits or the harm of that. I think the outcome is, you know, has certainly been earth moving in terms of dealing with these issues in Florida for sure. But I interrupted you, you were talking about, I want to hear a little bit about it, the drilling in Southwest Florida. Yeah, there was one of the big issues nationally and that was being explored was how does fracking and impact potential water quality. And I think the Obama EPA was doing a big study on that. And so there was some fracking activity in Southwest Florida.(…) And of course, DEP was called to look into that. And there was a lot of public hearings and you know, there was some enforcement actions surrounding it. So that, that all of course raised legal issues that had to be had to support. But when I, when I say it was really a dream job from a lawyer’s perspective, right. You know, one of the things early on when I was just coming to DEP, we got a call from Governor Scott’s office and the governor had been had heard about and there were folks interested in the aqua chocolates, Chattahoochee Flint litigation that had died out really and he wanted to look into that issue. And shortly thereafter, the governor made a decision that the way to go about that was filing a case in the US Supreme Court called her an original action.(…) And when my first, my two years as DEP General Counsel week, that got filed, you were heavily involved in it as well.

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Yeah, let’s mean, well, let’s skip forward to that. Cause he did file the original action while you were there and then you leave DEP and you go to Carlton Fields. You and I spent a little time around each other when you were a DEP. I think we may have overlapped by a year as well when I spent a short stint there, but we spent most of our time when you were part of the Florida legal team that was suing Georgia in the Supreme Court and that original action. I characterize it when someone asked me, I say, you know, Matt babysat me through that process, but I think you have probably more circumspect view of what was going on at the time. Talk a little bit about your role as being once inside, but now outside, but brought into that team to try to help the Apalachicola River and Bay. Yeah.(…) Well, you don’t need much babysitting, Brett. You’re a great witness in the case and a great representative for the state and the region and the water management district. But yeah, you, I stepped away and, you know, my career, as I alluded to, has been at the intersection of law and policy. And so I stepped away from the policy aspects working at DEP and just going back to be a practicing lawyer. The mission was to prove up this case that the Apalachicola River and Estuary was being harmed by the depletions of water upstream by the state of Georgia. And so, yeah, I helped shepherd witnesses through like yourself and other experts on rivering ecology and estuary and ecology. And so we had a five week trial up in Portland, Maine, as you know, which is ironic that two Southern states were pulled up there.

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And we put on our case and unfortunately, I think folks probably know the outcome ultimately, and that’s a whole long story, but we didn’t win. And it’s unfortunate in my view that the court wasn’t able to see what was at risk there. I hope the Bay and the river are still doing well. Yeah, I have some, obviously anyone who knows me knows that I have some more personal gripes. We’ll call it with the outcome of the case and Georgia’s use of water or as I would describe it, the abuse of that water. But those are two different things. I talked a little bit. I had Fred Ashour, who you know well on the podcast a while back. But those are two separate things. How I feel about something in your mind and you look at something from a practical standpoint and you say this is pretty easy to understand. But there’s an enormous amount of legal wrangling that goes into that as well.(…) Are you satisfied from a legal standpoint? I know you disagree with it because you were involved on the Florida side. But can you talk a little bit about how you feel about the conclusion of it from the legal arguments? Yeah, I think the main thing that I was disappointed with is the fact that the Army Corps of Engineers operates a system of dams along the Chattahoochee River from Atlanta all the way down to at the Florida border with Georgia. The arguments came to center around well, even if the Supreme Court gave Florida the water it was seeking, would the Army Corps of Engineers let it through their dam system or would they hold it back for the benefit of Georgia? I think it’s real unfortunate that the federal government didn’t step up and the Army Corps didn’t affirmatively say that they would meet an obligation to protect the environmental values that we were trying to highlight. And so the case really turned on that, frankly.(…) And I think it was a missed opportunity for the federal government to step up and agree to provide some allocation of water to save. Yeah, and for me as a layman, those are the things that are the hardest to deal with is when you look at the decision about what the Corps is going to do and the statutory basis for the operation of the Beaufort Dam on the Lanier Reservoir also included natural resources and habitat as well, not just public supply and all the other things. That was the part from my mind is sitting from the sidelines, not being an attorney, saying, “I don’t understand why the natural system there, why the fishery doesn’t get its due in that equation.” I think the Corps would argue and has argued that that’s not one of their purposes that Congress has given them for operating that dam system and that water management system. I think there’s arguments to the contrary. It’s on the state at this point to provide whatever protections for the Bay and the river system that is needed. Sure. All right. Let’s get past that discomfort.(…) And so you leave Carlton Fields here in Florida after the case and you decide to go back to D.C. in public service again, this time at the Environmental Protection Agency. Talk about that shift back to D.C., why you would do that. Yeah. Well, first of all, I guess the best things in life are sometimes unexpected journeys, right? And I was sitting at my desk one day at Carlton Fields. I was working on, of course,(…) Florida-specific issues mostly with federal issues here and there based on my background. And I got a call from a friend who said he was working on Donald Trump’s campaign.(…) And this was after Jeb Bush had already withdrawn from the race for president.(…) And my friend asked if I could draft some talking points for candidate Trump at the time on environmental issues. I did it. Really didn’t think much else about it.

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But, you know, things started to develop from there. And after the president, President Trump unexpectedly won the White House, they called me shortly thereafter and asked if I’d be willing to come back and serve in the administration.

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And my answer was, look, I had a good time previously in Washington, D.C., but I think it would have to be something senior to make me move my whole family back up here. They said, how about General Counsel of EPA? And I couldn’t turn it down.(…) Yeah, that’s a huge deal. You had to go through Senate confirmation for that one, right?

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That’s right. And I will say, Gret, it’s pretty shocking, but I was confirmed on unanimous consent. And it’s probably more about the Senate. It doesn’t care about the lawyers as much as some of the policy people. But.

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Yeah, yeah, I’m sure. We’ll talk about some of the heavy lifts, the issues that were really the ones that really made their way to your desk. I mean, it’s an enormous agency. You probably have many, many attorneys. They, every single case, can’t possibly come across your desk. How does something make it to your desk as the General Counsel of EPA?

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Yeah. And you’re right. There’s a lot to talk about. But my priorities were really the president and the administrator’s priorities at the time, which were focused on really deregulation and cutting out red tape while still protecting.

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The environment for the United States. What that meant and what that looked like. There are probably a couple things that were the took up the most amount of my time. One, and you know, I know this is a water podcast, but I’ll mention the Clean Power Plan and repeal and replacement was an enormous issue. And that I was involved in helping draft the legal rationale for the repeal of the Clean Power Plan.(…) And that issue ultimately went to the Supreme Court and was decided and our approach was affirmed in West Virginia, the EPA. The other issue, more kind of relevant to your audience is the waters of the United States. At the time, the Obama era clean water rule had been paused by the courts. There was all kinds of litigation around it. I step in as the chief lawyer and it’s a total mess.(…) We started working on our own rule called the Navigable Water Protection Rule and ultimately got that finished in 2020. And it was enforced for a while, as folks know. And then, of course, litigation surrounding that took that rule down as well. But I spent a lot of my time working on on those two issues. I think other big issues as well were an emerging policy around PFAS and we issued the PFAS action plan, which this current administration has now expanded and continues to work on. I will give one anecdote. I was sitting in my office one day being briefed by the lawyers and EPA’s office of general counsel.

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At any given time, there were four to five hundred cases filed against EPA that were within my era of responsibility to defend.(…) I saw on the list a name called Sacket. And I knew the case because it had gone to the Supreme Court back in 2010.

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And, you know, we’re not talking this is like 2018, 19 timeframe. And so I asked the attorneys and said, hey, I thought the Sacket case was over. The Supreme Court already decided. And they said, well, no, it was remanded back and went for a trial and EPA is still pursuing the Sacket on the jurisdictional question on the merits. It caused me concern to hear that.

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Well, before we get deep into Sacket, I do want to hear your perspective on that.

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But you had some overlap from your DEP general counsel days and your EPA general counsel days in terms of the 404 assumption where Florida assumed many of the duties related to wetlands. Can you talk a little bit about the basis for that and how you see it going at this point? Yeah, absolutely. I did skip over one of the biggest issues for Florida, which is assumption, state assumption.

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When we got in office, we were very, the EPA probably more pro states rights than any EPA, that’s the Reagan administration. The administration,(…) as your listeners may or may not know, while the NPDES program under the Clean Water Act has been adopted by, I think, 47 states now and has been implemented, the 404 program at the time had only been adopted by two states, Michigan and New Jersey. And we thought that was an issue. We thought this was a problem. And Florida, I think, under the SCAD administration, had been exploring whether it could take the 404 program. And we really started to look at that in earnest because by design, the Clean Water Act is ultimately designed to be implemented by the states. And there’s no better state than Florida in terms of wetlands protection and the capabilities that the DEP and the water management districts have. So to me, coming out of Florida was a no brainer that Florida could take this on. And my colleague, Dave Ross, who is the assistant administrator for water, felt the same way. He held a summit and states came in expressing interest about taking the program. And Florida was the only one who really put the resources and time into it due to the credit of DEP and the governor.

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Has anyone approached that issue other than Florida since that point when they looked at maybe how it turned out for Florida, like, “Hey, let’s take our shot at doing that as well.” Are there any of those? Yeah, absolutely. And there were other states in discussion with EPA at the time. Arizona was looking at it. But even as recently as this year, I’ve read and heard Nebraska is very interested in the program.

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State of Alaska is interested in taking on the program.(…) So there are still states, I think, that given that Florida lays the trail in the most recent times and see how that’s looking out, other states are looking to that leadership. So now let’s go forward. You started to talk about it, but when you left EPA, you went to Hunt and Andrews-Kirth law firm, which is very well respected. Still in the DC area, right? That’s right. And so now we’re looking at one of, I think, for environmental practitioners. This is utility folks, landowners,(…) lawyers like yourself looking at waters of the US.(…) You’re dealing with the outcome of the US Supreme Court’s decision in SACIT versus EPA. But there are really two parts to that, right? Can you help listeners understand first the basis of the origin of SACIT versus EPA? Because I think we describe it as SACIT 1 and SACIT 2 at this point. Can you talk about, maybe help create that distinction about where those cases originated and then how they ended up and what that means? Absolutely.(…) So SACIT 1, first of all, going back to, it started around 2004, is my understanding,(…) where the SACITs had bought a lot next to Priest Lake, Idaho, which is in the stovepipe northern part of Idaho. And they decided to fill a portion of their lot in order to construct. They’d be seeing pictures. It’s not too far from the lake, but it’s also surrounded by other houses and development. And EPA ultimately issued an administrative order to the SACIT saying they filled jurisdictional wetlands without a permit. SACITs wanted to sue and they got the Pacific Legal Foundation to represent them, which is a public interest law firm that takes on a lot of environmental issues. The EPA said, no, you can’t sue us. You can’t challenge this administrative order because the Clean Water Act and legal principles don’t allow it. Well, EPA was wrong about that. In 2010, all nine justices of the Supreme Court said the SACITs can sue. It went back and it only decided that question. It didn’t decide whether or not the SACIT’s land was jurisdictional.

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So the case went back down. There was a trial. The trial court found that it was jurisdictional. There was an appeal to the Ninth Circuit Court of Appeals. The Ninth Circuit found it was jurisdictional and they applied the significant nexus test that Justice Anthony Kennedy used in the infamous Rapanos decision of 2006.

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And under that test found that the waters were jurisdictional and that was the appropriate approach, according to the Ninth Circuit.(…) So that’s the background.(…) What happened in May of the case was petition and the Supreme Court kind of up to everyone’s surprise granted the case. And it granted it right on the question of what’s the appropriate standard when determining federal jurisdiction.

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The court decided that question again on 9-0. The liberals and the conservatives on the court all agree that the significant nexus test is not appropriate and it’s not consistent with the Clean Water Act’s definition of water in the United States.

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In fact, the relatively permanent test is that the Justice Scalia used in Rapanos is the appropriate test. And it, by doing so, resolved decades, literally, of confusion about which is the appropriate test to apply.

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And there’s a lot more to the decision too on adjacent wetlands, but I want to pause and make sure if you have any questions on that. Yeah, I think one of the questions is what does that now mean for Rapanos? Does that mean that only the portion of that old case that relates to, as you said, the Scalia standard hold or is Rapanos now done and it’s completely subsumed to only leave Sackett at this point? Great question.(…) And the problem with Rapanos is there wasn’t a majority of the court. It was a plurality decision. And so it was one justice concurring on different rationale and four justices that led by Justice Scalia. And so that’s what created the problem. And because of that plurality, there was never certainty about what the open test was. So Sackett says expressly that the Scalia opinion in Rapanos was correct. So it adopts the Scalia opinion. And it adds to that as well. It provided even more clarity. But so now the law of the land is the relatively permanent test for jurisdiction.(…) And according to Justice Scalia and Rapanos and Justice Alito, who offered the Sackett opinion, there has to be waters that are typically known or in normal parlance that the court says as flowing water bodies that form geographical features such as streams, oceans, rivers, and lakes. And they have to flow relatively permanently.(…) They can’t be things, the most obvious example, I think, is a dry washout in the western United States that only flows maybe every couple years. So it’s a dramatic change from what was being implied by the army court. From a layman’s perspective, meaning me, when you look at these connections, when you look at how the court has treated the case, is this an instance of maybe, I mean, did the EPA overplay its hand in terms of what it was pulling into its jurisdiction? Or is it something more complicated or maybe more simple than that?(…) Look, I think that the EPA and the army court built their whole program around the significant nexus test. But the root of the problem goes back to, I would say 2008, when the infamous Rapanos guidance was issued embracing both the relatively permanent test and the significant nexus test. So when that decision was made, it set off a whole policy and program in place. I really blame the courts for creating the confusion.(…) EPA and the court probably could have been more, in hindsight,(…) more circumspect than how they chose to implement the Rapanos decision. Yeah, and I guess that’s what I mean, Matt, is the devil is always in the details when you talk about, okay, someone makes a decision or a law is passed and then someone has to write rules and procedures and all these things for how to administer it. Philosophically, one might say if the legislature had done its job in terms of describing what’s supposed to be taking place and it makes it clear for judges and lawyers to do their jobs. But I guess given we’ve already passed that, and I guess that’s the thing that I want to maybe to talk a little bit about is those devils in the details when it comes to, okay, you have significant nexus and then somebody has to define what that means in practice, right? Absolutely. You know, this is the great debate we’re having at really at the national level. How much does Congress need to provide in terms of guidance to EPA or other federal agencies and what gaps can those agencies fill in? Because, you know, typically Congress can’t do everything. They can’t think of every fact pattern and they like to issue broad, sweeping statutes. But really the Supreme Court started to ratchet down on how broad it can be and what gaps agencies can fill. It’s coming pretty clear after West Virginia EPA and the SACA case that if a statute is vague or silent, EPA cannot just substitute that with their own judgment and make up their own policy. Certainly if it’s a major question of political and economic significance, they can’t fill that gap, but they need to be careful because the court is cutting back on deference. And if your listeners may know about Chevron deference, which is simply the policy of deferring to agency interpretations of statutes,(…) and the court doesn’t look like it’s going to be doing that nearly as much as it used to in environmental law. Yeah, yeah, that does seem significant at this point. And I guess that’s what I meant by the EPA overplaying its hand, which is when you get to how you do something in practice, do you do it in a way that that perhaps extend something far enough to get, say, the SACA family to sue you? Yeah,(…) I think,(…) I just want to make one more point. The court really focused on because the Clean Water Act is a criminal statute, we can’t subject people or in the court’s view to criminal liability based on very vague standards. Because otherwise, people don’t know what the rules are and how do they avoid criminal liability.

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It takes experts that you know to tell us where these wetlands are. And so whether you fill them or you could accidentally walk into criminal liability without even knowing it. So from your perspective now, in your current chair, not EPA, general counsel chair, but now you’re working for clients out in the world,(…) what does this ruling mean for you and your clients moving forward in terms of how they approach these issues?(…) That’s the million dollar question, right? As you know, everybody’s asking that, how does it apply nationally? How does it apply in Florida because of Florida assumption?(…) And we know the test. I mean, we’ve got more clarity than we’ve ever had on what the legal test is. And, you know, the court, the one thing I didn’t get into is the court also addressed adjacent wetlands and basically interpreted the term adjacent to mean adjoining.(…) So in order to be a jurisdictional wetlands,(…) the adjacent wetland has to be touching or abutting the relatively permanent water.

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And that is a big change from how significant nexus was previously applied in the field. But it doesn’t answer all our questions. Right now, I’ve heard in DC, EPA is working on guidance and they’re reaching out to the regulated community.

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Under the normal course, we would get guidance from EPA on how to apply the decision, much like they did in 2008 with the Rokanos guidance.

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But until then, I think I hear that the Army Corps is not issuing jurisdictional determinations or permits where these issues are raised.(…) So a lot of it’s still up in the air for applicants who are seeking JDs or permits from the federal government.(…) Right. And so now we’re going to move into the speed round of our conversation. What professional accomplishment are you most proud of, Matt? I would say it had to – my time in Florida was fantastic, but being able to be the General Counsel of EPA was truly extraordinary and particularly in a time when we could work on so many regulations and try to make them better and function better for the U.S. economy. So I’d have to put that at the top of my list.(…) Is there an issue or case in the past that you would have approached differently and why?(…) Hindsight’s 20-20, and I think we already touched on it in terms of the ACF case. It wasn’t all my decision, of course. I was just one of many people involved.

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I wish we could have worked more to broker a deal with the Army Corps and Georgia to try to get a resolution of that that was ultimately more favorable for the estuary.

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What advice would you give to young people who were just entering or even interested in entering environmental law and public service in general? Because you did a lot of time in public service.

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Great question. I get this question a lot, and I think the answer is the area of environmental regulation and laws, I think, are a growth area. I’m seeing it every day. And it’s growing in different ways in different places than it grew in the past, but I still think it’s a good area for young folks to get involved with, whether in the policy side or the legal side.(…) Your relationships are really important and never miss an opportunity to make a new connection.

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I like it.(…) Matt, how can folks get in touch with you if they want to learn more about your practice and how you might be able to help them?

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Yeah, I’m on the web. I’m a partner at Hunter Davis-Kirth in Washington, D.C. We have a full suite of environmental regulatory assistance across all environmental media. So, happy to help folks, and it’s an exciting time with a lot of new developments in the law right now. Good deal. And I’ll make sure to put all of that, your website and all that information on the episode notes for folks that want to reach out to you. Matt Leopold, thanks for coming on the show. Appreciate it.(…) Thanks, Brett.(…) Well, that’s it for this episode. Thanks for listening to Water for Fighting. This podcast has been brought to you by REZ and CN Shoreline. Don’t forget to check the episode notes to visit their websites and learn more about how they can help you. If you’re enjoying the show, please be sure to subscribe on whatever platform you use. And don’t forget to leave a five-star rating and review. You can follow the show on Facebook, LinkedIn, Instagram, probably even Twitter at FL WaterPod. And you can reach me directly at flwaterpod at gmail.com with your comments and suggestions for who and or what you’d like to know more about. Production of this podcast is by Lonely Fox Studios. Thanks to Carl Sworn for making the best of what he had to work with and to Dave Barfield for the amazing graphics and technical assistance. A very special thank you goes out to Bow Spring from the Bow Spring Band for giving permission to use his music for the podcast. The song is called “Doing Work for Free” and you should check out the band live or wherever great music is sold. Join me next time for another amazing conversation with someone who has helped shape water and environmental policy in the Sunshine State. Until then, keep your whiskey close and your water closer.