EPA Proposes Rescinding “Waters of the United States” Rule: Comments Due August 28

The saga of defining “waters of the United States” under the Clean Water Act (CWA) continues.  In 2015, after a series of Supreme Court rulings spanning over 20 years, a myriad of disparate district and circuit court decisions, and guidance issued by the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps), the two Agencies finally issued a revised definition in 2015.  However, that effort was stymied by subsequent challenges to the rule and an executive order issued by President Trump shortly after taking office. (Please click here for a Meyers Nave Client Alert that summarizes the challenges and the related executive order.)  Now, EPA and Corps have proposed a two-step process to first rescind the 2015 regulation and for the time being implement the pre-2015 definition, and then engage in rulemaking to revise that pre-2015 definition.  Public comments are due by August 28, 2017.  (Please click here for the Federal Register notice.)

The CWA provides federal authority to regulate “navigable waters.”  The term “navigable waters” is defined in the statute as “waters of the United States.”  However, “waters of the United States” is not defined in the statute, and has been the subject of a triad of U.S. Supreme Court decisions establishing the federal government’s scope of authority, beginning with United States v. Riverside Bayview, 474 U.S. 121 (1985), which tended to support broad authority under the statute, followed by Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC), 531 U.S. 159 (2001), which contracted that authority, and, finally, in Rapanos v. United States, 547 U.S. 715 (2006), in which a fragmented 4-4-1 plurality rendered three different opinions as to the scope of federal authority under the CWA.

In Rapanos, the plurality decision authored by the late Justice Scalia took a very narrow view of the breadth of the CWA, holding that federal jurisdiction could extend over non-navigable waters only if they exhibit a relatively permanent flow or, in the case of wetlands, where there is a continuous surface water connection between the wetland and a relatively permanent waterbody.  The four-justice dissent, authored by Justice Stevens, took a much broader, pre-SWANCC view of jurisdiction.  However, it was Justice Kennedy’s concurring opinion establishing that non-navigable-in-fact waters could be regulated if there was a “significant nexus” between those waters and a traditionally navigable waterway that seemed to win the day.  The majority of lower courts have viewed Justice Kennedy’s concurrence in Rapanos as controlling law, following the test established by the Court in Marks v. United States, 430 U.S. 188, 193 (1977), in which the Court provided that in plurality decisions, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.”

After issuing regulatory guidelines following each of the SWANCC and Rapanos decisions, and in the face of inconsistent lower court rulings, the Agencies revised the CWA definition of “waters of the United States” in 2015 after a lengthy rulemaking process that garnered more than 1 million public comments.  The Rule is based on the “significant nexus” test rather than the Scalia plurality test, more broadly defines the scope of water bodies that are subject to the CWA, and, among other things, provides specific guidance with respect to riparian areas, floodplains and tributaries.

In response, more than two dozen lawsuits challenging the Rule were filed in federal district and circuit courts.  The District of North Dakota issued a stay of the Rule, applicable in thirteen states.  The Sixth Circuit went beyond the district court, and ordered a nationwide stay of the Rule while it sorted out the challenges, and in response to a jurisdictional challenge ruled that those challenges needed to be made directly to federal appellate courts, rather than district courts.  The Supreme Court subsequently granted certiorari on the jurisdictional issue.  President Trump’s Executive Order followed in short order, directing the Agencies to revise the Rule.  The Order refers to the 2015 Rule as “one of the worst examples of federal regulation” and instructed the Agencies to interpret the term “navigable waters” in a manner “consistent with the opinion of the late Justice Antonin Scalia in Rapanos v. United States…”  The Agencies have now proposed a two-step “rescind-and-revise” regulation in direct response to that Executive Order.  Through it all, the Sixth Circuit’s stay remains in place.

In the proposed rescind-and-replace rule, the Agencies state that their action is necessary because of the need for “regulatory continuity and clarity.”  In particular, they note the complications that could arise if, for example, the Sixth Circuit’s nationwide stay expires but the North Dakota district court’s stay that applies in only thirteen states remains in place, the resulting confusion if the various stayed lawsuits proceeded, or if the Supreme Court rules that the Sixth Circuit lacks original jurisdiction.  Ultimately, the Agencies determined that a “stable regulatory foundation for the status quo would facilitate the Agencies’ considered re-evaluation” of the “waters of the United States” definition.  According to the Agencies, that re-evaluation would include “developing ‘some notion of an outer bound’ [of the scope of federal authority under the Clean Water Act] from the full range of relevant information.”

Regardless of the procedure actually employed as part of this rule-making effort, there can be little doubt that any revised definition will be heavily litigated.  One likely challenge would focus on whether the applicable law following Rapanos is Justice Scalia’s plurality opinion, or whether it is Justice Kennedy’s “significant nexus” concurrence.  Second, if, as expected, the regulation is revised in a way that could otherwise be viewed as retracting federal authority, additional challenges should be anticipated.  Ultimately, it is more likely than not that the end result will be the addition of another Supreme Court decision addressing the boundaries of “waters of the United States,” transforming its jurisprudence on the subject from a trio to a quartet.