Also by: Zachary Berliner

On June 27, 2017, the U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“USACE”) released a joint proposal to rescind and ultimately replace the Obama administration’s 2015 “Clean Water Rule” (the “Rule”).  The Rule defines the extent of federal jurisdiction over “waters of the United States” under the Clean Water Act (“CWA”) in light of the 2006 U.S. Supreme Court decision in Rapanos v. United States.  The Sixth Circuit Court of Appeals stayed effectiveness of the Rule on October 9, 2015.

The Rapanos decision, as informed by 2008 guidance, remains in effect while EPA and USACE reconsider the definition of “waters of the United States.”  Last week’s “proposed interim rule” is the first step in this reconsideration. The agencies state that the proposed rule would “apply the definition of ‘waters of the United States’ as it is currently being implemented, that is informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding practice.”  The agencies add that the rule “simply codifies the current legal status quo while the agencies engage in a second, substantive rulemaking to reconsider the definition of ‘waters of the United States.’”

The CWA requires a permit for the discharge of any pollutants, including dredged or fill material, into “navigable waters,” which is defined in the statute as “waters of the United States”—a term that is not defined in the statute.  The scope of CWA jurisdiction has been considered in three Supreme Court decisions, including most recently Rapanos.  In that case, Justice Scalia, writing for a four-Justice plurality of the Court, defined “waters of the United States” as “relatively permanent, standing or continuously flowing bodies of water,” as well as wetlands with a “continuous surface connection” to such waters.  A concurring opinion by Justice Kennedy provided a more expansive definition, encompassing wetlands with a “significant nexus” to traditionally navigable waters and which “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical and biological integrity of … [such] covered waters.”

In the 2015 Rule, EPA and USACE relied upon Justice Kennedy’s “significant nexus” articulation to define “waters of the United States.”  The Rule was challenged in a series of lawsuits, and subsequently was stayed nationwide by the Sixth Circuit Court of Appeals, which ultimately took jurisdiction over the challenges.  Whether the challenges belong in district court or the circuit court of appeals under the CWA is a question that is pending before the United States Supreme Court and is scheduled for argument in the Fall 2017 term.

In February 2017, President Trump issued an Executive Order directing EPA and USACE to begin the process of “revising or revoking” the 2015 Rule.  The agencies’ recent proposal responds to that directive with a two-step plan.  First, EPA and USACE would rescind the 2015 Rule, reinstating the “waters of the United States” definition from a 1986 regulation and pre-2015 guidance documents.  Second, EPA and USACE would develop new regulations to replace the 2015 Rule, “taking into consideration the principles that Justice Scalia outlined in the Rapanos plurality opinion.”

EPA and USACE stated that the Rule’s rescission is intended to “establish a clear regulatory framework that would avoid the inconsistencies, uncertainty and confusion” that may stem from pending litigation.  The proposed rescission of the Rule leaves in place 2008 guidance from EPA and USACE after Rapanos.  That guidance does not have the force of law and lacks the specificity of the 2015 Rule.  It also requires time-consuming, case-specific evaluations for many wetlands determinations.  This approach leaves it to individual property owners, regulators, and judges to determine how to apply the Rapanos decision in considering the extent of CWA-regulated waters—the very uncertainty that EPA and USACE stated they promulgated the 2015 Rule to clarify.

EPA and USACE are accepting public comment on the proposed rescission of the Rule, but they are not soliciting comments on the contents of a possible replacement at this time.  Instead, they have requested that such comments be deferred until the forthcoming proposal of a new rule defining “waters of the United States.”