In a Supplemental Notice of Proposed Rulemaking (Supplemental Proposal), the EPA and Army Corps of Engineers (Corps) note that their July 27, 2017, notice of proposed rulemaking (NPRM) to repeal the Obama administration’s 2015 Clean Water Rule defining the Clean Water Act (CWA) term Waters of the United States (WOTUS) prompted 685,000 public comments both supporting and opposing the proposed repeal; the agencies do not, however, give even a general indication of how many of those comments were either for or against the proposed repeal. What the agencies do report is that some commenters did not believe the proposed repeal offered them an opportunity to comment on the legal and policy reasons behind the proposed repeal. The agencies state that this was not their intention. Accordingly, the Supplemental Proposal spells out in detail all the major legal and policy reasons the EPA/Corps believe the WOTUS Rule should be repealed and requests additional public comment on those issues.
Scalia and Kennedy
In the proposed repeal, the agencies note that they were directed by an Executive Order from President Donald Trump to “consider interpreting the term ‘navigable waters’ … in a manner consistent with” Justice Antonin Scalia’s plurality opinion in Rapanos v. United States. (Navigable Waters represents the extent of Congress’s definition of WOTUS in the CWA.) But in the Supplemental Proposal, the agencies barely mention the Scalia opinion and focus instead on Justice Anthony Kennedy’s “significant nexus” standard, which was also articulated in Rapanos and which formed most of the legal basis for the 2015 definition, particularly regarding CWA jurisdiction over tributaries and adjacent wetlands.
The 2015 Rule defined significant nexus as “a water, including wetlands, that either alone or in combination with other similarly situated waters in a region, significantly affects the chemical, physical, or biological integrity of a category (1) through (3) ‘jurisdictional by rule’ water.”
The Matter of Distance
In the Supplemental Proposal, the agencies take the position that the WOTUS Rule imposed an incorrect interpretation on Kennedy’s opinion. Much of the concern about the interpretation concentrates on the WOTUS Rule’s position that tributaries and adjacent wetlands can be “considerable distances” from navigable waters and still be CWA jurisdictional. For example, the EPA/Corps state:
“In the Sixth Circuit, the court granted a nationwide stay of the 2015 Rule after finding, among other factors, that the petitioners showed a ‘substantial possibility of success on the merits’ of their claims against the 2015 Rule, including claims that the rule was inconsistent with Justice Kennedy’s opinion in Rapanos and that the rule’s distance limitations were not substantiated by specific scientific support.”
Data Differ on Impact of WOTUS
Other issues on which comment is requested include:
- The best and most efficient approach to address the potential deficiencies identified in this notice and to provide the predictability and regulatory certainty that alternative approaches may not provide.
- Whether the 2015 WOTUS Rule gave sufficient effect to the term navigable in the CWA.
- Whether the WOTUS Rule definition of adjacent waters as categorically jurisdictional no matter how small or frequently flowing the water’s tributary to navigable waters is in conflict with Kennedy’s understanding of significant nexus.
- Whether estimation in the WOTUS Rule that the new definition would result in only a 2.84 percent to 4.65 percent annual increase in positive approved jurisdictional determinations is correct. The agencies now estimate that as much as 34.5 percent of other waters previously found CWA nonjurisdictional would be found jurisdictional under the 2015 definition.
Comments are also requested on whether the 2015 Rule improperly hands the federal government authority over wholly intrastate waters that are physically remote from navigable-in-fact waters.
The prepublication version of the Supplemental Proposal is here.