The EPA and the Corps of Engineers have taken the first of two steps to repeal and replace the definition of ‘waters of the United States’ promulgated by the Obama Administration in 2015 (the 2015 Rule). The definition establishes the jurisdictional reach of the EPA and Corps under the Clean Water Act to regulate navigable waterways, tributaries, and their adjacent wetlands. The 2015 Rule had been widely criticized as being overly expansive because more waterways, tributaries, and wetlands were considered to be subject to jurisdiction.
When it was published, the 2015 Rule spawned lawsuits in multiple district courts and appellate courts, ultimately resulting in a patchwork of regulation. In 22 states, the 2015 Rule applied, but in the rest of the states, the pre-2015 rule applied. When the Trump Administration took office, it vowed to repeal the 2015 Rule (Step One) and replace it (Step Two) with a new definition that would clearly define where federal jurisdiction begins and ends in accordance with the CWA and Supreme Court precedent. The Step Two proposal for a new definition was published in December, 2018.
The recent action completes Step One – the repeal of the 2015 Rule and the reinstatement of the rule in place prior to the 2015 revision. The agencies stated that they took the final action to eliminate the ongoing patchwork of regulation and provide regulatory certainty. The agencies stated that restoring the prior regulation is preferable to maintaining the 2015 Rule because returning to the pre-2015 regulations will reinstate a longstanding regulatory nationwide framework that is more familiar to and better understood by the agencies, regulated entities, and the public.
The agencies provided several justifications for the repeal of the 2015 Rule. Chief among them is the conclusion that the 2015 Rule exceeded the agencies’ authority under the CWA by adopting an overly expansive interpretation of the ‘significant nexus’ standard articulated by Justice Kennedy in the Supreme Court’s 2006 Rapanos decision. In Rapanos, Justice Kennedy concluded that the CWA covers only “waters that are or were navigable in fact or that could reasonably be so made” as well as waters, such as tributaries and adjacent wetlands, with a “significant nexus” to navigable waters in the traditional sense. The agencies now view the significant nexus standard as a “limiting test necessarily constraining overly broad applications of the statute.” The 2015 Rule, however, broadened the meaning and application of the terms ‘tributary,’ ‘adjacent’ and ‘significant nexus’ to support the assertion of federal regulation over nearly all waters within large watersheds. The broad interpretations in the 2015 Rule impermissibly expanded the scope of federal jurisdiction, resulting in the regulation of waters beyond what Congress intended.
Additionally, the agencies concluded that the 2015 Rule failed to adequately consider and accord due weight to CWA provisions that afford the states the right to plan the development and use of land and water resources. The 2015 Rule expanded jurisdiction over the pre-existing regulatory regime in a manner that encroached on traditional state land-use regulation and the authority of states to regulate state waters.
The Step One repeal rule is effective 60 days from publication in the Federal Register. Now, the EPA and the Corps will turn to Step Two – finalizing a rule that, in their words, will clarify federal authority under the CWA in a clear and understandable way. It is very likely, if not a certainty, that the Step Two rule will spawn its own set of district court challenges that may create another patchwork of regulation until the Supreme Court ultimately speaks again about the scope of federal jurisdiction over ‘waters of the US.’