28 June 2017

Step One – EPA’s Proposal to Repeal the Obama Administration’s Definition of “Waters of the United States”

Yesterday, EPA and the U.S. Army Corps of Engineers began the formal process of repealing and replacing the Obama administration’s Clean Water Rule (“Rule”).  Promulgated in 2015, the controversial Rule had broadly defined the term “waters of the United States,” which establishes the limits of jurisdiction under the federal Clean Water Act.  In February of this year, President Trump signed an Executive Order that directed EPA and the Corps to review the 2015 Rule and issue a proposed rule rescinding or revising the Rule as appropriate and consistent with law. 

The Administration has decided to undertake this effort in two steps.  In this first step, EPA and the Corps have now proposed to rescind the 2015 Rule and restore the pre-Rule regulations and policy, reinstating guidance EPA had issued in 2008 for interpreting the Act.  “The proposed rule would recodify the identical regulatory text that was in place prior to the 2015 Clean Water Rule and that is currently in place as a result of the U.S. Court of Appeals for the Sixth Circuit’s stay of the 2015 rule. Therefore, this action, when final, will not change current practice with respect to how the definition applies.”

The agencies state in the preamble they need this interim first step to provide “regulatory continuity and clarity.”  Earlier this year, the Supreme Court agreed to hear a case challenging the court of appeals’ jurisdiction over the 2015 Rule.  According to the preamble, if the Court were to find the appeals court had lacked jurisdiction, the nationwide stay would expire “leading to inconsistencies, uncertainty and confusion” as to what rules would apply while EPA and the Corps complete their work on a revised rule.  The agencies point to the fact that one district court had stayed the 2015 Rule in 13 states, meaning the 2015 Rule could be in effect in some areas but not others, if the court of appeals stay were lifted.  There were also other district court cases that had been filed which would be reactivated.  That could result in potentially conflicting and unnecessary litigation, should the Administration issue a new rule, as planned.

In the second step, the agencies will conduct a rulemaking that reevaluates the “waters of the United States” definition.  Although the agencies do not propose any new substantive requirements at this point, the preamble does indicate that in the second step the agencies will be looking how it might divide jurisdictional power between the federal and state governments.  In particular, the preamble cites to Section 101(b) of the Clean Water Act which states that it is the “policy of the Congress” to “recognize, preserve, and protect the primary responsibilities and rights of States” under the Act.  While the “2015 Rule did acknowledge” this principle, the agencies did not rely on it “in setting the outer bounds of jurisdiction of the Act….”  In this proposal, the agencies committed that during the second step they would “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” not covered by the Clean Water Act.

The 30-day public comment period on the agencies’ proposal will run from the date of publication in the Federal Register.