EPA and U.S. Army Corps Take First Step to Replace WOTUS

June 29, 2017
Kristine A. Tidgren

On June 27, 2017, the EPA and the U.S. Army Corps took the first step to rescind and replace the embattled Clean Water Rule, also called "Waters of the United States" or WOTUS. The agencies formally submitted a proposed rule to rescind the 2015 WOTUS rule and recodify (on an interim basis) the same regulatory text that existed prior to the 2015 rule. The proposed rule will be published in the Federal Register in about a month.

Background

The agencies issued the final Clean Water Rule on May 27, 2015.[i]  We’ve written extensively about the contents of this Rule in prior publications. Immediately upon publication of the Rule on June 29, 2015, the majority of states and many industry groups filed actions challenging the validity of the Rule. The lawsuits contended that:

  • The Rule exceeds the agencies’ authority under the Clean Water Act.
  • The Rule violates Const. Amend. X.
  • The agencies violated the Administrative Procedures Act in promulgating the Rule.

The Rule went into effect on August 28, 2015; however, the United States Court of Appeals for the Sixth Circuit stayed the Rule nationwide in October of 2015.[ii]

On February 28, 2017, President Trump directed the EPA to prepare for public notice and comment a proposed rule to rescind or revise the Clean Water Rule. The Order said that officials should consider incorporating into any new rulemaking the definition of “navigable waters” suggested by Justice Scalia in Rapanos: “only those wetlands with a continuous surface connection to adjacent waters covered by the Clean Water Act are ‘waters of the United States.’”

Proposed Rule

The June 27 proposed rule marks the agencies' first step in complying with that directive. The proposed rule replaces the stayed 2015 definition of WOTUS and recodifies “the exact same regulatory text that existed prior to the 2015 rule, which reflects the current legal regime under which the agencies are operating,” given the Sixth Circuit's stay of the 2015 Rule.

The agencies state that this rulemaking is the first step of a two-step process. They will next engage in a substantive review of the appropriate scope of the “waters of the United States" and develop a new definition, “taking into consideration the principles that Justice Scalia outlined in the Rapanos plurality opinion.”

The June 27 Rule will be subject to a 30-day comment period after its publication in the Federal Register.

We will keep you posted!

 

[i] “Clean Water Rule: Definition of ‘Waters of the United States.' ” 80 FR 37054 (“2015 Rule”) (found at 40 CFR 110, 112, 116, 117, 122, 230, 232, 300, 302 and 401, and 33 CFR 328).

[ii] Murray Energy Corp. v. EPA, no. 15-3751. The Sixth Circuit determined on 2/22/2016, that it has jurisdiction to rule on the merits of the legal challenges to the Rule. Specifically, the Sixth Circuit held that 33 U.S.C. § 1369(b)(1) gives courts of appeals (and not district courts) exclusive original jurisdiction over challenges to the Clean Water Rule. In re EPA & Dep't of Def. Final Rule, 817 F.3d 261 (6th Cir. 2016). On April 21, 2016, the Sixth Circuit denied petitions seeking a rehearing en banc. On January 13, 2017, the U.S. Supreme Court granted certiorari in National Association of Manufacturers v. Department of Defense, No. 16-299 to decide the jurisdictional issue. On April 3, the Supreme Court denied the federal government’s request to hold the briefing schedule in abeyance

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