On September 12, 2019, the Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (the “Corps”) (together, the “Agencies”) announced a final rule (the “Repeal Rule”) rescinding the 2015 Clean Water Rule (the “2015 Rule”) that defined “waters of the United States” (“WOTUS”) under the Clean Water Act (“CWA”). This Repeal Rule is the first step in a two-step rulemaking process intending to carry out the directives of a February 2017 Executive Order titled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States Rule’” (the “Executive Order”). The Executive Order dictated that EPA and the Corps “review” the 2015 Rule, and “consider interpreting the term ‘navigable waters’ . . . consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).”
In the Repeal Rule, the Agencies determined that the 2015 Rule improperly asserted federal jurisdiction over “physically disconnected waters and wetlands” in the form of “adjacent” waters or based on an “expanded significant nexus test.” The Agencies describe the Repeal Rule as reestablishing “national consistency across the country by returning all jurisdictions to the longstanding regulatory framework that existed prior to the [2015 Rule] . . . while the agencies engage in a second rulemaking to revise the definition of [WOTUS].” As the result of extensive, on-going litigation, the 2015 Rule had been in effect in 22 states, and enjoined in 27 states, which continued to follow the pre-2015 Rule regulatory regime.
The Agencies gave four reasons for rescinding the 2015 Rule: (1) it exceeded authority under the Clean Water Act as determined under Justice Kennedy’s opinion in Rapanos v. United States; (2) it did not give sufficient weight to the states’ role articulated in § 101(B) of the CWA; (3) it might encroach on traditional land use planning authority of the states; and (4) its distance-based limitations were procedurally defective and lacked adequate record support.
The Agencies relied on a distinction in the CWA between the terms “nation’s waters” and “navigable waters,” and accordingly, a distinction between the responsibilities and rights of the States to manage land and water resources and the federal government’s powers under the Commerce Clause. The Repeal Rule explains that the CWA “reveal[s] Congress’ intent to restore and maintain the integrity of the nation’s waters using federal assistance to support State and local partnerships to control pollution in the nation’s waters in addition to a federal regulatory prohibition on the discharge of pollutants into the navigable waters.” While conceding that “States may or may not choose to regulate” newly characterized non-jurisdictional waters, the Agencies noted that gap-filling by the states in light of the repeal could result in a zero net impact to compliance costs and environmental benefits.
Approved jurisdictional determinations issued under the 2015 Rule will remain valid, but recipients of such determinations may request a reassessment. Preliminary jurisdictional determinations are unaffected, but recipients may similarly request reassessment pursuant to the pre-2015 Rule regulatory regime. Pending and future jurisdictional determinations will be made based on the pre-2015 Rule regulatory regime and the guidance in Rapanos, so long as the Repeal Rule is effective.
The Repeal Rule is likely to be the subject of litigation challenges, and challengers may seek to enjoin the rule before it becomes effective 60 days after publication in the Federal Register. Thus, it is likely that, in the near term, there will be continued uncertainty regarding the scope of CWA jurisdiction.
We most recently analyzed the litigation surrounding the 2015 Rule, as well as the EPA’s proposed replacement rule, which is the second step of this two-step process. The agencies are reviewing approximately 620,000 public comments on the proposed definition, and plan to take final action on a replacement rule by this winter.
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