On September 12, 2019, the U.S. Environmental Protection Agency (EPA) and the Department of the Army issued a pre-publication draft of the final rule to repeal the 2015 Clean Water Rule definition of “Waters of the United States” (WOTUS Rule), which amended existing Clean Water Act (CWA) regulations. According to the EPA, the agencies’ goal is to “implement the pre-2015 Rule regulations nationwide as informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding agency practice.”
The WOTUS Rule built on the existing regulatory scheme and defined the geographic scope of the CWA by placing waters into three categories: (1) waters that are categorically “jurisdictional by rule” in all instances; (2) waters that are subject to case-specific analysis to determine whether they are jurisdictional; and (3) waters that are categorically excluded from jurisdiction.
“Jurisdictional by rule” waters included six subcategories: (1) waters that are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters that are subject to the ebb and flow of the tide; (2) interstate waters, including interstate wetlands; (3) the territorial seas; (4) impoundments of waters otherwise identified as jurisdictional; (5) tributaries of the first three categories of “jurisdictional by rule” waters; and (6) waters adjacent to a water identified in the first five categories of “jurisdictional by rule” waters, including “wetlands, ponds, lakes, oxbows, impoundments, and similar waters.” Several definitions within these subcategories were broadened. For example, “tributaries” and “adjacent” were expanded based on specific characteristics or physical proximity to other jurisdictional waters, including certain isolated waters. Additionally, the WOTUS Rule identified certain new categories of waters that could be covered based on a case-specific analysis of whether they have a “significant nexus” to a jurisdictional water, and broadened the applicability of “similarly situated” waters within a region.
According to the EPA’s current rulemaking, repeal of these changes is appropriate because the WOTUS Rule:
- Did not implement appropriate legal limits on the scope of the agencies’ authority under the CWA, including the “significant nexus” test in the Rapanos case;
- Failed to “consider and give due weight to” states’ rights under section 101(b) of the CWA;
- Included “interpretations of the CWA that push the envelope of their constitutional and statutory authority absent a clear statement from Congress authorizing the encroachment of federal jurisdiction over traditional State land-use planning authority;” and
- Added distance-based limitations that “suffered from certain procedural errors and a lack of adequate record support.”
Furthermore, the EPA pointed to the “regulatory patchwork” resulting from court challenges whereby the WOTUS Rule is currently in effect in only 22 states, the District of Columbia, and the U.S. territories, while the preexisting regulations apply in more than half the states.
The final rule will repeal the WOTUS Rule and administer the regulations promulgated in 1986 and 1988 in portions of 33 C.F.R. part 328 and 40 C.F.R. parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401. The revised rule will be effective 60 days following publication in the Federal Register.
The reversal of the WOTUS Rule is one of many recent environmental rollbacks initiated or completed by the Trump Administration. The in-progress reversals include the high-profile revocation of California’s authorization from the EPA to set stricter greenhouse gas emissions standards for vehicles, which other states can choose to follow. After the announcement on September 18, 2019, California, 22 other states, and several major cities filed a lawsuit in the U.S. District Court for the District of Columbia challenging the federal government’s ability to revoke the waiver. The lawsuits tee up a significant legal battle over the intent of the Clean Air Act and the ability of states to promulgate their own environmental standards.