The Environmental Protection Agency (EPA), along with the Army Corps of Engineers, intends to repeal and replace regulations known as the “Clean Water Rule.” That Rule, which is actually a regulatory definition of what “waters of the United States” means as the phrase is used in the Clean Water Act (CWA), was issued by the Obama Administration in 2015 to clarify which streams, lakes, wetlands, and other bodies of water are subject to federal protection from pollution under the CWA.
Background Information: The Clean Water Rule, as issued in 2015, does not impose particular regulatory requirements per se. Rather, it defines the waters to which federal anti-pollution laws and authorities apply. The Clean Water Act (CWA), which requires permits to be obtained for activities that involve the discharge of pollutants into “navigable waters,” defines such waters as “waters of the United States including the territorial seas.” Precise interpretation of what “waters of the United States” (commonly referred to as “WOTUS”) are has been a controversial issue, giving rise to extensive litigation and a number of Supreme Court cases. The most recent of those cases, Rapanos v. United States, left considerable uncertainty as to the controlling judicial standard.
In Rapanos, a majority of the Court found that the Army Corps of Engineers had interpreted WOTUS too expansively in imposing permit requirements with respect to certain wetlands, but did not entirely agree on the legal basis for the Court’s ruling. Justice Scalia wrote a plurality Opinion (an Opinion representing the views of more Justices than had agreed upon any other Opinion) in which he was joined by three other Justices; Justice Kennedy concurred in the judgment, but wrote a separate concurring Opinion articulating a somewhat different interpretation of the WOTUS concept than Scalia’s Opinion.
Under Justice Scalia’s formulation of the statutory standard, waters of the United States are limited to “relatively permanent, standing or continuously flowing bodies of water” that are connected to traditional navigable waters and wetlands with a “continuous surface connection” to such plainly protected bodies of water. This interpretation did not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as in a drought, or “seasonal” rivers or streams that have continuous flow during only some months of the year; but it did exclude wetlands that the Corps of Engineers had deemed to be protected by virtue of being adjacent (in the sense of relatively close) to traditional navigable waters. By contrast, Justice Kennedy’s concurring Opinion relied on application of a seemingly more expansive “nexus” standard. Under Kennedy’s analysis (which tipped the balance of the Court in favor of the Scalia plurality as opposed to the other four dissenting Justices), a water or wetland falls within the scope of WOTUS if is possesses a “significant nexus” to waters that are navigable in fact or could reasonably be made so. Wetlands have such a nexus if they significantly affect the chemical, physical, and biological integrity of other covered waters understood as navigable in the traditional sense (either alone or in combination with similarly situated lands in the region).
In the 2015 Clean Water Rule, the EPA had sought to establish much needed clarity in what would and would not be regarded as a WOTUS subject to permitting requirements, taking into consideration the differing Supreme Court formulations, the governing statute’s underlying purpose (to restore and maintain the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, and the territorial seas), and extensive scientific data compiled in an EPA Report. The Rule defined “waters of the United States” in a manner extending CWA coverage (and thus federal statutory authority to regulate polluting activity) to streams and wetlands that did not clearly fall within the scope of previous regulations and EPA guidance (for example, certain tributaries, isolated waters such as prairie potholes and vernal pools, and “adjacent” waters located within a specified distance of, although not physically connected to, bodies of water clearly subject to CWA protection).
In justifying the new Rule, the Obama Administration EPA placed heavy reliance on scientific evidence that an expansive definition of “waters of the United States” is necessary to afford the nation’s traditional “navigable waters” the pollution protection clearly intended by the Clean Water Act. Opponents of the Rule saw it as an unwarranted stretch of federal authority into land use matters more appropriately left to the individual States, and an imposition of unjustified burdens on industry and farming.
As the EPA Notice of its proposal to rescind the Clean Water Rule explained, the Agency envisions a two-step process, in which the Government will first rescind existing regulations, and then replace them with new regulations likely to more narrowly restrict federal oversight of activities involving the discharge of pollutants into water sources. The EPA proposed, as a first step, to reinstitute a regulatory regime (including federal guidance issued in 2008) that existed prior to June, 2015, and that in reality has continued as the status quo due to unresolved court challenges to the 2015 Clean Water Rule’s validity. The second step will establish a new regulatory standard — in all likelihood one that more restrictively defines “waters of the United States” and thus more narrowly limits federal authority to prevent water pollution. Any such new standard will need to be proposed in a separate, future Notice to the public, and should be subject to another public Comment Period. Before proposing a specific new standard, however, the EPA and COE are soliciting public input on what that standard should be.
The EPA’s Rationale for the Proposed Repeal: The threshold reason for the EPA proposing to rescind the Clean Water Rule is that it implements the President’s Executive Order of February 28, 2017, entitled Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the Waters of the United States Rule, which expressly directed the EPA to rescind or revise the Clean Water Rule, and appeared to endorse the more restrictive definition of WOTUS set forth in the Scalia Opinion in the Rapanos case. Seemingly acknowledging that this Executive Order itself is not a legally sufficient “rational basis” for the Agency reversing its previous position and conclusions on the proper scope of federal authorities under the CWA (as set forth in the Clean Water Rule and the explanatory preamble to its final issuance in June, 2015), the Agency also justifies its action based on two major additional arguments. First, the EPA points out that the Clean Water Rule is currently not being implemented because it has been stayed by the Sixth Circuit Court of Appeals in litigation brought by over thirty States, and argues that eliminating the Rule altogether therefore achieves needed continuity and certainty for affected parties by making it clear that the previous regulatory regime remains in force. Moreover, the Agency emphasizes a provision of the CWA that explicitly says States should retain a role in preventing, reducing, and eliminating water pollution. The EPA accordingly explains that, upon further consideration of its 2015 rulemaking, it now regards the Clean Water Rule as too great an intrusion of federal authority into matters more properly within the ambit of State control. The Agency makes no attempt to contradict scientific evidence and findings relied on issuing the Clean Water Rule, supporting a conclusion that protection of the nation’s traditional “navigable waters” from pollution is inextricably connected with limiting pollution in the broad scope of water bodies to which the Clean Water Rule applies.
Additional Resources for a Deeper Dive: A more complete understanding of the competing arguments both in favor of and against the Clean Water Rule can perhaps best be obtained by comparing the EPA’s explanation in its Notice of proposed repeal of the Rule with the very different rationale articulated in 2015 to accompany publication of the Final Clean Water Rule. An important underpinning of that previous rationale was the EPA’s Final Report on scientific evidence pertaining to the effects of wetlands and other smaller, isolated, or non-flowing water bodies on more well-recognized “navigable waters.” Among the many other additional resources that can be accessed online to gain better understanding of the issue is the National Resource Defense Council’s explanation of its support for the 2015 Rule and an article in the publication, Science articulating the view that and the current repeal proposal side-steps important scientific evidence and considerations. On the other side of the debate, you may wish to read the Competitive Enterprise Institute’s statement of its opposition to the Rule, an article by ThinkProgress seeking to explain why the validity and advisability of the Rule has been controversial, and the PBS News Hour’s discussion of why small farmers and ranchers as well as larger industrial entities oppose it.