Clean Water Rule Could Be Swept Downstream

On June 29, the Department of the Army, Corps of Engineers (USACE), and the Environmental Protection Agency (EPA) issued a 93-page “Supplemental Notice of Proposed Rulemaking” (the “Notice”) with the primary purpose of repealing the “2015 Rule Defining Waters of the United States.” Available at https://www.epa.gov/sites/production/files/2018-06/documents/wotus_step1_snprm_prepub_0.pdf. The Notice calls the rule released by the Obama Administration the “2015 Rule,” but it was formerly known as the Clean Water Rule. If the proposed rule is implemented as written, this new rule could be one of the most sweeping changes to the federal Clean Water Act in decades.

The 2015 Rule (aka Clean Water Rule) was issued by President Obama’s EPA in an effort to clarify what waters were actually regulated under the Clean Water Act (CWA). A series of court cases in the early 2000’s, principally the Solid Waste Agency of Northern Cook County v. Army Corps of Engineers and the Rapanos v. United States cases, questioned EPA’s and USACE’s consideration and authority over various water-bodies—principally isolated wetlands and ephemeral, headwater streams. While the EPA had tried to provide guidance to stakeholders on how to interpret the Supreme Court decisions (particularly Kennedy’s “significant nexus” concurring opinion), there was still considerable confusion and disagreement about whether certain types of waters were considered jurisdictional or not. The 2015 Rule was designed to reduce that uncertainty and included substantial scientific, economic, and regulatory consideration during the rule’s development. However, the 2015 Rule was never actually implemented—the Sixth Circuit implemented a nationwide stay on the rule before it went into effect.

The Notice states that the proposed rule would repeal the 2015 Rule and restore the regulations to what existed prior to the 2015 Rule. However, the Notice appears to go beyond just restoring the pre-2015 Rule regulations by fundamentally altering the definition of jurisdictional waters. Specifically, the Notice appears to reduce the influence of the “significant nexus” standard described in Justice Kennedy’s concurring opinion, which was controlling after the EPA issued guidance in response to the Rapanos decision. Instead, the Notice places a greater emphasis on Scalia’s plurality opinion in Rapanos, which focused on the idea of a relatively permanent water (RPW).

The Notice signifies another focal shift compared to the pre-2015 rules with an extended discussion about the balance between federal and state interests. The statutory basis for this consideration is cited as Section 101(b), which defines the states’ role in the CWA. One such example of a potential impact of this analysis is that the Notice questions whether waters within the 100-year floodplain should be considered jurisdictional under the CWA, or whether such waters should be reserved for regulation by the states. This could be a dramatic shift in the regulation of waters in the United States when compared to current and past regulations.

The Notice also includes additional important information that signifies how the Trump administration intends to shape federal policy regarding CWA enforcement. Therefore, we will continue to monitor the federal rule-making process and provide more updates as those developments arise.

About the Author: Nat Morse

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