EPA Seeks to Redefine Waters of the United States
August 9, 2017
EPA Seeks to Redefine Waters of the United States (WOTUS)
Congress enacted the Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act or CWA) “to restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” To accomplish this goal, the CWA prohibits the discharge of any pollutants into “navigable waters” without first obtaining a permit. The CWA defines the term “navigable waters” as “waters of the United States, including the territorial seas.”
In 2015, the Obama Administration promulgated the “Clean Water Rule: Definition of ‘Waters of the United States,’” 80 Fed. Reg. 37054 (June 29, 2015) (WOTUS Rule) to further define which rivers, streams, lakes and marshes fell under the definition of “waters of the United States.” The rule adopted the approach of Justice Anthony Kennedy’s concurring opinion in Rapanos v. United States, 547 U.S. 715 (2006). Justice Kennedy concluded that the appropriate test for the scope of jurisdictional waters is whether a water or wetland possesses a “‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made,” a broadly encompassing standard that significantly expanded the scope and reach of the CWA.
The WOTUS Rule was immediately challenged. In total, 31 states, the U.S. Chamber of Commerce, and several other interested parties sought judicial review in multiple actions in Federal district courts and Circuit Courts of Appeal, raising concerns about the scope and legal authority of the WOTUS Rule. As a result, the previous definition of “waters of the United States” is currently still in force. Late last year, the U.S. Court of Appeals for the Sixth Circuit issued a stay halting the enforcement of the WOTUS Rule. The U.S. Supreme Court is scheduled to determine whether the federal appeals court had jurisdiction over the dispute next term.
Trump Administration Seeks Rescission of WOTUS Rule
Shortly after taking office, President Donald Trump issued an Executive Order entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” As the title implies, the Executive Order stated that “it is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the States under the Constitution.”
In his Executive Order, President Trump directed the EPA and Army Corp of Engineers to consider interpreting the term “navigable waters” in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos. In the Supreme Court’s split decision, Justice Scalia maintained that “the phrase ‘the waters of the United States’ includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] . . . oceans, rivers, [and] lakes.’. . . . The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. . .” This is a narrow jurisdictional interpretation, and would likely exclude most headwater systems and wetlands areas.
On June 27, the EPA and Army Corps of Engineers acted on President Trump’s directions by proposing a new rule to rescind the definition of “waters of the United States” in the Code of Federal Regulations and recodify the pre-WOTUS Rule regulations and guidance in order to “provide continuity and certainty for regulated entities, the States, agency staff, and the public.” In a second step, the agencies will conduct another notice and rulemaking process to substantively re-evaluate the definition of “waters of the United States.” This effort will begin with the publication of a Notice of Proposed Rule-making on December 2017, which will likely propose a new definition of “waters of the United States” that largely tracks Justice Scalia’s opinion in Rapanos. After public comment, a formal draft of the new rule will be issued and a final rule will likely be adopted in 2018.
The EPA’s and Army Corps of Engineers’ action has had no effect on the WOTUS Rule for the time being because the Sixth Circuit decision has stayed its enforcement pending a legal challenge. However, the redefinition of “waters of the United States” to align with Justice Scalia’s perspective as set forth in Rapanos may have a profound effect with respect to numerous legal issues related to the CWA, including permitting, regulatory compliance and potential liability matters. Members of the regulated community should, therefore, stay informed regarding WOTUS Rule developments and participate in the notice and comment process that will be conducted later this year.
Do you have any questions? Would you like to discuss the matter further? If so, please contact me, Daniel McKillop, at 201-806-3364.