The EPA continues to implement the de-regulatory agenda of President Trump. One rule now being reviewed for repeal and revision is the Clean Water Rule. Many felt that the rule went well beyond the scope of the Clean Water Act and regulated private property that had not been previously subject to regulation. As a result, they support EPA's and the U.S. Army Corps of Engineers' current efforts to repeal the rule and revise it to reflect a more traditional view of the Clean Water Act's jurisdictional reach.
The Clean Water Rule was published in June 2015, expanding the definition of "navigable waters" and "waters of the United States" in several subtle but important ways. For example, although traditional navigable waterways were always included, EPA stated in the preamble to the rule that these waterways included all waters used for commercial waterborne recreation, such as guided fishing trips or water ski tournaments. Additionally, it defined tributaries as any water that contributes flow, directly or indirectly, to a traditional navigable waterway and that is characterized by the presence of a bed and banks and an ordinary high water mark. Finally, it added a definition of "adjacent" as bordering, contiguous or neighboring.
The rule increased the jurisdictional reach of the EPA and the Corps. Now waterways, and their adjacent wetlands, not previously subject to regulation would be subject to permitting under the Clean Water Act. Obtaining a permit is itself expensive and, for every impact in wetlands, expensive mitigation is also required. Additionally, a landowner or developer could find themselves the recipient of an enforcement action from the agencies.
The Sixth Circuit stayed the rule almost immediately, finding that the petitioners were likely to succeed on their claims that the rule exceeded EPA's and the Corps' authority under the Clean Water Act. The rule, as published, never went into effect.
An executive order was issued Feb. 28, 2017, which required EPA and the Corps review the rule. Among other things, EPA and the Corps were required to consider defining the scope of jurisdiction in a manner similar to the approach announced by Justice Antonin Scalia in the Rapanos case. In that case, Justice Scalia stated jurisdiction extended to waters that are navigable in the traditional sense: relatively permanent, standing or continuously flowing bodies of water, and wetlands with a continuous surface connection to those relatively permanent waters.
The EPA and the Corps announced a two-step process to implement the executive order. In step one, the agencies will reinstitute the rules as they existed prior to issuance of the rule. In step two, the agencies will propose a new definition that would replace the approach in the rule, taking into consideration the principles that Justice Scalia outlined in the Rapanos case. The EPA and the Corps published a proposed rule July 27 to implement step one.
Due to its expansive reach, the rule would have allowed EPA and the Corps to control development in many areas that were never intended by the Clean Water Act and were not part of the original definition of "waters of the United States." In fact, as the placement of any fill material in wetlands requires a permit and mitigation, EPA and the Corps would essentially control development in even the most innocuous of places, like your own backyard. Hopefully, by seeking input and public comment, a balance can be reached that protects our rivers, streams and adjacent wetlands while allowing normal development of areas that were never intended to be regulated under the Clean Water Act.
John B. King is a partner with Breazeale, Sachse & Wilson LLP in Baton Rouge, Louisiana. His practice relates mainly to environmental regulatory permitting and compliance. Prior to joining the firm in 2003, he served as chief attorney for enforcement for the Louisiana Department of Environmental Quality.
For more information, visit www.bsw enviroblog.com or contact John B. King at jbk@bswllp.com or (225) 381-8014.
