On June 27, 2017, EPA Administrator Scott Pruitt announced that EPA and the Army Corps of Engineers will be publishing a proposed rule (the Recodification Rule) that would rescind the Obama Administration’s definition of “waters of the United States” (WOTUS) under the Clean Water Act (CWA). EPA states that the Recodification Rule is necessary to “ensure certainty as to the scope of CWA jurisdiction on an interim basis” while EPA and the Army Corps of Engineers conduct “a substantive review of the appropriate scope of ‘waters of the United States’”.
As we previously reported on this blog, the WOTUS Rule (a/k/a the Clean Water Rule) was promulgated by the Obama Administration in 2015, and was the latest attempt to define the jurisdictional limits of the CWA. The CWA limits its jurisdiction to “navigable waters”, which are obliquely defined in the CWA as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1361(7). The precise definition of “waters of the United States” has been a controversial and well-litigated issue for years.
As we also previously reported, the WOTUS Rule was challenged in court by numerous parties, and the Sixth Circuit Court of Appeals issued a stay of the new rule on October 9, 2015. One aspect of that litigation – whether the Sixth Circuit has exclusive original jurisdiction under the CWA to hear the challenges – is currently on appeal before the U.S. Supreme Court.
The Recodification Rule was drafted in response to the February 28, 2017, Executive Order titled “Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule”. The stated policy behind the Executive Order is that:
It is in the national interest to ensure that the Nation's navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.
The Executive Order directs EPA and the Army Corps of Engineers to review the WOTUS Rule, and either rescind or revise the rule to define “Navigable Waters” in a manner consistent with the above-stated policy and the plurality opinion of Justice Scalia in Rapanos v. United States, 547 U.S. 715 (2006). In Rapanos, Justice Scalia determined that:
The phrase waters of the United States includes only those relatively permanent, standing or continuously flowing bodies of water forming geographic features that are described in ordinary parlance as streams, oceans, rivers, and lakes…[and] only those wetlands with a continuous surface connection to bodies that are "waters of the United States" in their own right…
Id. at 739-42.
The 2015 WOTUS Rule was EPA’s first attempt to define “waters of the United States” since the Supreme Court rejected the previous definition in Rapanos. The Recodification Rule would rescind the 2015 WOTUS Rule and replace it with a recodification of the regulatory text in place prior to 2015, informed by applicable guidance documents and consistent with the Rapanos decision. At some future date, EPA and the Army Corps of Engineers state that they will pursue notice-and-comment rulemaking to promulgate a new definition of “waters of the United States.”
The public will be able to submit comments on the proposed Recodification Rule for 30 days from the date of publication in the Federal Register.