Regulatory Developments

EPA and Corps Move Toward WOTUS Repeal

The EPA and the U.S. Army Corps of Engineers (agencies) have initiated what they describe as a “two-step process” that will result in a revised definition of the Clean Water Act (CWA) term waters of the United States (WOTUS). The first step is a proposed rule that would rescind the Obama administration’s WOTUS definition (June 29, 2015, FR) and re-codify the regulations that existed before that definition was issued. In the second step described in the proposal, the agencies “will pursue notice-and-comment rulemaking in which the agencies will conduct a substantive re-evaluation of the definition of waters of the United States.”

Supreme Court cases

When the 2015 definition was issued, the agencies said it filled a gap because the CWA itself does not define WOTUS, merely referring to them as “navigable waters.” That vague description has resulted in a great deal of inconsistency among federal agencies and the states over which waters are in fact jurisdictional under the CWA. The agencies said the confusion was exacerbated by three U.S. Supreme Court decisions that either expanded (United States v. Riverside Bayview Homes) or shortened (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers) the regulatory reach of the CWA. The third decision (Rapanos v. United States) was bifurcated, resulting in two schools of thought about what WOTUS means. The 2015 definition depended to a large degree on the opinion of Justice Kennedy, who wrote that waters with a “significant nexus” to navigable waters were jurisdictional.

But a court plurality in Rapanos held toJustice Scalia’s different interpretation, which argued that jurisdiction is limited to relatively permanent, standing, or continuously flowing bodies of water that are connected to traditional navigable waters as well as wetlands with a continuous surface connection to such water bodies.

Requests for definition

In 2015, the agencies also noted that their definition responded to many requests from industry and states that implement the CWA, both of whom said the pre-2015 definition lacked specificity and turned too many jurisdictional determinations into complex, case-specific exercises that impaired business decision-making and often resulted in one or another party being sued. But some states and industry sectors said the 2015 definition went too far and challenged the action in multiple law suits, including a petition from 13 states to vacate the rule. In October 2015, the U.S. Court of Appeals for the 6th Circuit stayed the 2015 rule nationwide. At that point, the regulatory definition in force before the 2015 rule was promulgated went back into effect, pending further review by the courts.

Executive Order

In his February 28, 2017, Executive Order (EO), President Trump directed the agencies to consider interpreting navigable waters in a manner consistent with Justice Scalia’s opinion in Rapanos. The current proposal to rescind the 2015 definition responds to the EO, say the agencies, and sets the stage for “a recodification of the regulatory text that governed the legal regime prior to the 2015.”

In addition to following the Scalia opinion, the agencies emphasize that they will approach their second step—issuing a new or revised definition of WOTUS—in conformance with CWA section 101(b), which explicitly recognizes that the primary responsibility to prevent, reduce, and eliminate pollution to WOTUS belongs to the states.

“[T]he agencies did not include a discussion in the 2015 rule preamble of the meaning and importance of section 101(b) in guiding the choices the agencies make in setting the outer bounds of jurisdiction of the Act, despite the recognition that the rule must be drafted ‘in light of the goals, objectives, and policies of the statute,’” the agencies now state. “In the two-step rulemaking process commencing with today’s notice, the agencies will more fully consider the policy in section 101(b) when exercising their discretion to delineate the scope of waters of the U.S., including the extent to which states or tribes have protected or may protect waters that are not subject to CWA jurisdiction.”

Other approaches considered

The agencies note that a final rule that rescinds the 2015 definition may be essential if the 6th Circuit’s stay of the definition expires. Should that occur, the 2015 definition would take effect in parts of the country not subject to a district court order that blocked the definition in 13 states.

The agencies say they considered other approaches to providing stability while they work to finalize the revised definition, such as simply withdrawing or staying the definition, but “did not identify any options that would do so more effectively and efficiently than this proposed rule would do.”

A pre-publication version of the proposal is here.