EPA, Army take first step toward rescinding 'Waters of US' rule

On June 27, in response to an executive order issued by President Trump in February, the Environmental Protection Agency and the U.S. Army Corps of Engineers issued a proposed rule that will be the first step toward rescinding the agencies' 2015 final rule defining the "Waters of the United States" that are subject to federal jurisdiction under the Clean Water Act.

"We are taking significant action to return power to the states and provide regulatory certainty to our nation's farmers and businesses," said EPA Administrator Scott Pruitt. "This is the first step in the two-step process to redefine 'waters of the U.S.' and we are committed to moving through this re-evaluation to quickly provide regulatory certainty, in a way that is thoughtful, transparent and collaborative with other agencies and the public."

In a June 27 news release, the EPA said the new proposal will re-codify the regulatory text that existed before the final WOTUS rule was issued in 2015 and that is currently in place because of the U.S. Court of Appeals for the Sixth Circuit's October 2016 stay of the 2015 rule.

"This action would, when finalized, provide certainty in the interim, pending a second rulemaking in which the agencies will engage in a substantive re-evaluation of the definition of 'waters of the United States,' the EPA said. "The proposed rule would be implemented in accordance with Supreme Court decisions, agency guidance, and longstanding practice."

President Trump's executive order, signed on Feb. 28, sets forth a policy 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 order directs the EPA and the Corps of Engineers, if they revise the rule, to interpret the term "navigable waters," as defined in the Clean Water Act, in a manner consistent with the opinion of the late Justice Antonin Scalia in Rapanos v. United States. Scalia's interpretation would restrict federal jurisdiction.

In Rapanos, Scalia argued that the Clean Water Act confers jurisdiction over only "relatively permanent bodies of water," and "only those wetlands with a continuous surface connection" to traditional navigable waters. Four of the other justices argued for a much more expansive view of the law, saying that it should include most wetlands.

Mixed reaction from key senators

The chairman of the Senate Committee on Environment and Public Works, Republican Sen. John Barrasso of Wyoming, applauded the action by the EPA and Army to begin rescinding the WOTUS.

The 2015 rule "would have put backyard ponds, puddles, and prairie pot holes under Washington's control," said Barrasso. "I applaud the Trump administration for working to remove this indefensible regulation."

Sen. Tom Carper of Delaware, the top Democrat on the committee, said in a June 27 statement that the 2015 final WOTUS rule, also known as the Clean Water Rule, was put together carefully and should not be rescinded.

"Without the Clean Water Rule, our nation's streams and wetlands remain at risk of contamination, businesses across the country lack the certainty they've desired for years, and millions of families remain at greater risk of exposure to polluted water," he said.

Agencies to take public comment on first step

The EPA and Corps of Engineers said they will solicit public comment for 30 days from the date of publication of the proposed rule in the Federal Register, expected in the next few days. An unofficial, pre-publication version of the proposal can be seen here.

The agencies plan to ask for comment on "whether it is desirable and appropriate to re-codify the status quo as an interim first step pending a substantive rulemaking … and the best way to accomplish it."