By Jaime K. Saylor, Hatchett & Hauck LLP
On June 27, 2017, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (ACOE) released a pre-publication version of their proposal to rescind the 2015 Clean Water Rule. Publication of the proposed rule in the Federal Register will mark the initial step in a two-step rulemaking process to first retract the 2015 Clean Water Rule, which defined “waters of the United States” (or “WOTUS”), and then replace that definition.
The Clean Water Act (CWA) prohibits the discharge of any pollutants, including dredged or fill material, to “navigable waters” except in accordance with the Act. The CWA defines “navigable waters” very simply as “waters of the United States, including the territorial seas.” Over the years, the simplicity of this definition has engendered layers of regulatory definition, guidance and federal case law about what exactly is a “water of the United States.” As the agencies’ proposal notes, in the late 1980s, the EPA and ACOE adopted substantially similar definitions of WOTUS, and federal courts then gave more shape and context to those definitions; in the proposal the agencies identify three U.S. Supreme Court cases which set the bounds of CWA jurisdiction prior to the 2015 Clean Water Rule: United States v. Riverside Bayview Homes, 474 U.S. 121 (1985), Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), and perhaps most significantly, Rapanos v. United States, 547 U.S. 715 (2006). In response to the Rapanos decision, the agencies issued joint guidance in 2007 (revised slightly and reissued in 2008) which provided additional agency instruction on WOTUS.
Since issuance of the 2008 guidance the agencies had been working on rule changes defining the scope of federal CWA jurisdiction, culminating in the 2015 Clean Water Rule. The Rule contained a new definition of WOTUS and was immediately met with multiple challenges in federal courts across the country, from states, industry and environmental groups. In October 2015, the United States Court of Appeals for the Sixth Circuit issued a stay of the rule, postponing its implementation nationwide. Without delving into the legal minutiae, the rule remains stayed while the U.S. Supreme Court prepares to hear arguments on the Sixth Circuit’s jurisdiction over the case – another hurdle before the federal courts can decide the actual merits of the various rule challenges.
Meanwhile, the current administration is moving ahead with its commitment to rescinding the Clean Water Rule, as outlined in a February 28, 2017 Executive Order titled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” In its proposal, the agencies note that they have the authority to rescind and revise the rule based on a “re-evaluation of policy,” so long as the revision is itself authorized under the law and reasonable.
Because of the stay currently in place, the regulatory regime governing WOTUS is that which was in place prior to the adoption of the 2015 Clean Water Rule – the prior regulations, the U.S. Supreme Court cases noted above, and the agency guidance including the 2008 guidance. It is the agencies’ intent to retain that regime up until the time it is replaced with this administration’s own rule defining WOTUS. Thus, the June 27, 2017 pre-publication version of their proposal seeks to rescind the 2015 Clean Water Rule and simply replace it with the regulatory text in place prior to that rule. The proposal notes that although this is exactly the regulatory regime in place today due to the Sixth Circuit’s stay, this first step is nonetheless needed to ensure that remains the case even if the legal proceedings result in the nationwide stay being lifted or force other changes which could leave the regulated community subject to a patchwork of disparate regulations.
Once this first rulemaking is complete, next will be a separate notice-and-comment rulemaking to develop and propose a new definition of “waters of the United States.” The current proposal does not offer specific changes the agencies anticipate making at that step, but broadly outlines some concepts which the administration believes should play a larger role in the WOTUS definition. Taken together, they suggest that the administration is seeking to limit federal jurisdiction and rely more on states and tribes to regulate waters within their respective jurisdictions. For example, the proposal highlights text from Section 101(b) of the Clean Water Act regarding the role of states in regulating land and water resources:
In addition to the objective of the Act and the goals and policies identified to help achieve that objective in section 101(a), in section 101(b) Congress articulated that it is “the policy of the Congress” to:
[R]ecognize, preserve, and protect the primary responsibility and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter. It is the policy of Congress that the States manage the construction grant program under this chapter and implement the permit programs under sections 1342 and 1344 of this title.
Therefore, as part of the two-step rulemaking, the agencies will be considering the relationship of the CWA objective and policies, and in particular, the meaning and importance of section 101(b).
Pre-Publication Version of Proposed Rule: Definition of "Waters of the United States" - Recodification of Pre-existing Rules, p. 13 (June 27, 2017) (internal citations omitted). It appears that the agencies plan to also undertake a review of state regulation of non-jurisdictional waters:
In the two-step rulemaking process commencing with today’s notice, the agencies will more fully consider the policy in section 101(b) when exercising their discretion to delineate the scope of waters of the U.S., including the extent to which states or tribes have protected or may protect waters that are not subject to CWA jurisdiction.
Id. at 14. The proposal doesn’t provide any details on this facet of their review; it may be that the agencies will be considering what regulatory framework is left if some classes of waters are removed from federal jurisdiction. The agencies also anticipate incorporating the federal jurisdictional principles outlined by Justice Scalia in the Rapanos decision, which some view as potentially limiting the scope of the WOTUS definition under the current regulatory regime.
The proposal makes clear that the agencies are not soliciting comments on the pre-2015 definition of WOTUS or any revisions to the scope of that definition; for now, the agencies are seeking public comment only on “whether it is desirable and appropriate to re-codify in regulation the status quo as an interim first step pending a substantive rulemaking to reconsider the definition of ‘waters of the United States’ and the best way to accomplish it.” Id. at 18. The nation will have to wait for the second rulemaking to see what the current administration ultimately emphasizes in its WOTUS policy.
Publication of this proposal in the Federal Register will mark the beginning of a 30-day public comment period.
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