The EPA and the Army Corps of Engineers have taken the first of two steps to repeal and replace the definition of "waters of the United States" (WOTUS) promulgated by the Obama administration in 2015. The definition establishes the jurisdictional reach of the EPA and Corps under the Clean Water Act (CWA) to regulate navigable waterways, tributaries and their adjacent wetlands. The 2015 rule was widely criticized as being overly expansive because more waterways, tributaries and wetlands were considered to be subject to jurisdiction.
The broad interpretations in the 2015 rule impermissibly expanded the scope of federal jurisdiction.
When it was published, the 2015 rule spawned lawsuits in multiple district courts and appellate courts, ultimately resulting in a patchwork of regulation. In 22 states, the 2015 rule applied, but in the rest of the states, the pre-2015 rule applied. When the Trump administration took office, it vowed to repeal the 2015 rule (step one) and replace it (step two) with a new definition that would clearly define where federal jurisdiction begins and ends in accordance with the CWA and Supreme Court precedent.
The recent action completes step one: the repeal of the 2015 rule and the reinstatement of the rule in place prior to the 2015 revision. The agencies stated that restoring the prior regulation is preferable to maintaining the 2015 rule because returning to the pre-2015 regulations would reinstate a longstanding, nationwide regulatory framework that is more familiar to and better understood by the agencies, regulated entities and the public.
The agencies provided several justifications for the repeal of the 2015 rule. Chief among them was the conclusion that the 2015 rule exceeded the agencies' authority under the CWA by adopting an overly expansive interpretation of the "significant nexus" standard. In the Supreme Court's 2006 Rapanos decision, Justice Kennedy concluded that the CWA covers only "waters that are or were navigable in fact or that could reasonably be so made" as well as waters, such as tributaries and adjacent wetlands, with a "significant nexus" to navigable waters in the traditional sense. The agencies now view the significant nexus standard as a "limiting test necessarily constraining overly broad applications of the statute." The 2015 rule, however, broadened the meaning and application of the terms "tributary," "adjacent" and "significant nexus" to support the assertion of federal regulation over nearly all waters within large watersheds. The broad interpretations in the 2015 rule impermissibly expanded the scope of federal jurisdiction beyond what Congress intended.
Additionally, the agencies concluded that the 2015 rule failed to adequately consider and accord due weight to CWA provisions that afford states the right to plan the development and use of land and water resources. The 2015 rule expanded jurisdiction over the pre-existing regulatory regime in a manner that encroached on traditional state land-use regulation and their authority to regulate state waters.
Step one is effective 60 days from publication in the Federal Register. The EPA and the Corps now turn to step two: finalizing a rule that will clarify federal authority under the CWA in a clear and understandable way. It is very likely, if not a certainty, that the step two rule will spawn its own set of district court challenges until the Supreme Court ultimately speaks again about the scope of federal jurisdiction over "waters of the U.S."
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.bswenviroblog.com, or contact John B. King at jbk@bswllp.com or (225) 381-8014.
