The U.S. Environmental Protection Agency (EPA) is moving forward with its rewrite of the Clean Water Rule. The agency recently sent its proposal to redefine “Waters of the United States” (WOTUS) to the White House Office of Management and Budget for review. 

[caption id="attachment_25032" align="aligncenter" width="550"] Photo courtesy of OC Gonzalez (Unsplash.com)[/caption]

Controversy Surrounding 2015 Clean Water Rule

The Clean Water Act (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,’” (WOTUS Rule or Clean Water Rule) to further define the “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), defining the scope of jurisdictional waters as 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.”

The broad standard set forth in the 2015 WOTUS Rule prompted significant litigation. In total, 31 states, the U.S. Chamber of Commerce, and several other interested parties challenged the scope and legal authority of the WOTUS Rule. In 2016, the U.S. Court of Appeals for the Sixth Circuit issued a stay halting the enforcement of the WOTUS Rule. However, its decision was overturned in January, when the U.S. Supreme Court issued its much-anticipated decision in National Association of Manufacturers v. Department of Defense.

The Supreme Court unanimously held that challenges to the Clean Water Rule must be filed in federal district courts rather than federal circuit courts of appeal. As a result, many of the lawsuits waged against the rule were forced to start from scratch. They have, however, still been successful in securing injunctions against its enforcement. On June 8, 2018, the U.S. District Court for the Southern District of Georgia blocked the WOTUS rule in 11 states, bringing the total to 24 states. According to the court, the WOTUS rule violated federal law, running afoul of both the Clean Water Act and the Administrative Procedure Act.

Trump Administration Proposing New WOTUS Rule

Last June, the EPA and Army Corps of Engineers proposed a new rule to rescind the definition of “waters of the United States” in the Code of Federal Regulations and officially recodify the pre-WOTUS Rule regulations and guidance. The rule served as a stop-gap measure while the EPA drafted a new version of the Clean Water Rule.

The EPA’s new rule, which should be published soon, is likely to revolve around a narrow jurisdictional interpretation of the CWA and will likely exclude most headwater systems and wetlands areas. In 2017 Executive Order, the Trump Administration called for 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. . .” 

In announcing that the agency had taken the next step in redefining WOTUS, EPA Administrator Scott Pruitt highlighted that the new rule would be more business-friendly. “Farmers, ranchers, landowners, and other stakeholders are counting on EPA to listen to their input when it comes to defining ‘waters of the United States,’” Pruitt said in a press statement. “Today, we are taking an important step toward issuing a new WOTUS definition and answering President Trump’s call to ensure that our waters are kept free from pollution, while promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the federal government and the states under the statutory framework of the Clean Water Act.”

The EPA’s rewrite of the Clean Water Rule will also undoubtedly face lawsuits from environmental groups. Because suits must be filed in the federal district courts, they will likely result in inconsistent rulings and protracted legal battles. In the end, the Supreme Court could have the final word.

Given that the Trump Administration’s definition of “waters of the United States” may significantly impact a wide range of legal issues related to the CWA, including permitting, regulatory compliance and potential liability matters, we encourage members of the regulated community to stay informed regarding WOTUS Rule developments, as well as participate in the forthcoming the notice and comment process.

If you have any questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, at 201-806-3364.