On July 27, 2017, the Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) jointly published a proposed rule on the definition of “Waters of the United States” for purposes of the Clean Water Act (CWA) (attached). 82 Fed. Reg. 34899. This proposed rule is the first step in a planned two step rulemaking process as directed by Executive Order 13778, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule” (Feb. 28, 2017), 82 Fed. Reg. 12497 (Mar. 3, 2017). Step 1 would reinstate the regulatory text as it was before having been revised in 2015, in effect rescinding the final rule promulgated during the Obama Administration. 80 Fed. Reg. 37054 (June 29, 2015). In Step 2, the agencies will consider making substantive changes in light of court rulings, and they have indicated that they will engage in tribal consultation at that point. The deadline for filing comments on the Step 1 proposed rule is August 28, 2017.
Significance of “Waters of the United States.” While the term “waters of the United States” (often referred to as “WOTUS”) is not defined in the statutory text of the CWA, the term is key in determining the extent of the federal government’s regulatory jurisdiction under the CWA. The CWA prohibits the discharge of any pollutants, including any dredged or fill material, into “navigable waters,” unless the discharge is authorized pursuant to the Act. 33 U.S.C. §§ 1311(a), 1362(12). The term “navigable waters” is defined in the statute as “waters of the United States, including the territorial seas.” Id. § 1362(7). The term “navigable waters” has long been understood to include many kinds of waters that are not navigable in fact. As discussed in the preamble of the proposed Step 1 rule, much of the regulatory framework has been in place since 1977. The proposed Step 2 rule would result in a reduction in the scope of CWA regulatory jurisdiction, especially with respect to wetlands.
The definition of “waters of the United States” affects the implementation of CWA programs on tribal lands and lands upstream of tribal waters, including section 303, which calls for states and tribes treated like states to adopt water quality standards (WQS); section 401 certification of compliance with WQS, under which tribes can seek accommodation for environmental and cultural values within a federal permit; section 402 National Pollutant Discharge Elimination System permits, which regulate discharges of pollutants that may directly or indirectly reach jurisdictional waters; section 404 permits, which regulate the discharge of dredged or fill material into waters, including wetlands; and section 311, which requires oil spill response and prevention plans.
EPA has the lead role in administering most provisions of the CWA. The Corps, however, is charged with the lead role in administering the section 404 permit program, although EPA has authority to prohibit discharges at certain sites to avoid unacceptable effects. States have major roles in the CWA, and tribes can become authorized by EPA to be treated like states.
Supreme Court Opinions. In a 1985 decision, the Supreme Court deferred to the judgment of the Corps and upheld the inclusion of adjacent wetlands in the regulatory definition of WOTUS. United States v. Riverside Bayview Homes, 474 U.S. 121 (1985). Two subsequent Supreme Court decisions, however, ruled that there are some limits to the scope of federal jurisdiction over waters. In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC), the Court held that isolated intrastate ponds were not subject to CWA jurisdiction. In determining the scope of CWA jurisdiction over waters that are not in fact navigable, the majority opinion introduced the concept of “significant nexus” to waters that are navigable in fact.
The next Supreme Court decision was Rapanos v. United States, 547 U.S. 715 (2006), a decision without a majority opinion. Justice Scalia authored a plurality opinion (joined by three others) and announced the judgment of the Court. Justice Kennedy provided the decisive fifth vote and wrote an opinion concurring in the result. For Justice Kennedy, the test for the reach of federal jurisdiction under the CWA, as the Court held in SWANCC, is that “a water or wetland must possess a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.” Id. at 759. The Scalia opinion did not apply this test. Rather, as summarized in the preamble to the Step 1 proposed rule, the plurality interpreted WOTUS as “covering ‘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.” 82 Fed. Reg. at 34900.
Post-Rapanos Developments. The agencies issued a guidance document in 2008, and then conducted a rulemaking process, which culminated in the 2015 final rule. Numerous lawsuits followed. In one case, the Sixth Circuit Court of Appeals issued a nationwide stay of the 2015 rule pending the outcome of judicial review. The issue of whether the Court of Appeals has original jurisdiction is currently pending before the U.S. Supreme Court.
The Step 2 Rule. Executive Order 13778 directs the agencies, through rulemaking, to “consider” defining the term “navigable waters” in a manner consistent with Justice Scalia’s opinion in Rapanos. The agencies plan to do that in the Step 2 proposed rule. They say that they “will appropriately consult with tribal officials during the development of a subsequent rulemaking that makes changes to the longstanding definition of ‘waters of the United States.'”
In the Step 1 proposed rule, the agencies are not seeking comment on any substantive issues. Rather, they are only seeking comments on their plan to re-codify the pre-2015 regulatory text.
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