The EPA continues to implement the de-regulatory agenda of President Trump. One rule that is now being reviewed for repeal and revision is the Clean Water Rule. Many felt that the Rule went well beyond the scope of the Clean Water Act and regulated private property that had not been previously subject to regulation. As a result, they support EPA’s and the Corps’ current efforts to repeal the Rule and revise it to a more traditional view of the Clean Water Act’s jurisdictional reach.
The Clean Water Rule was published in June, 2015, expanding the definition of ‘navigable waters’ and ‘waters of the United States’ in several subtle but important ways. For example, although traditional navigable waterways were always included, EPA stated in the preamble to the Rule that these waterways included all waters used for commercial waterborne recreation, such as guided fishing trips or water ski tournaments. Additionally, it defined tributaries as any water that contributes flow, directly or indirectly, to a traditional navigable waterway and that is characterized by the presence of a bed and banks and an ordinary high water mark. Finally, it added a definition of adjacent as bordering, contiguous, or neighboring.
The Rule increased the jurisdictional reach of the EPA and the Corps. Now, waterways, and their adjacent wetlands, that were not previously subject to regulation would be subject to permitting under the Clean Water Act. Obtaining a permit is itself expensive and, for every impact in wetlands, expensive mitigation is also required. Additionally, a landowner or developer could find themselves the recipient of an enforcement action from the agencies.
The Sixth Circuit stayed the rule almost immediately, finding that the petitioners were likely to succeed on their claims that the rule exceeded EPA’s and the Corps’ authority under the Clean Water Act. The rule, as published, never went into effect.
An executive order was issued on February 28, 2017 which required that EPA and the Corps review the rule. Among other things, EPA and the Corps were required to consider defining the scope of jurisdiction in a manner similar to the approach announced by Justice Antonin Scalia in Rapanos case. In that case, Justice Scalia stated that jurisdiction extended to waters that are navigable in the traditional sense, relatively permanent, standing, or continuously flowing bodies of water, and wetlands with a continuous surface connection to those relatively permanent waters.
The EPA and the Corps announced a two-step process to implement the executive order. In step one, the agencies would re-institute the rules as they existed prior to issuance of the Rule. In step two, the agencies will propose a new definition that would replace the approach in the Rule, taking into consideration the principles that Justice Scalia outlined in Rapanos. The EPA and the Corps published a proposed rule on July 27 to implement step one.
Due to its expansive reach, the Rule would have allowed the EPA and the Corps to control development in many areas that were never intended by the Clean Water Act and were not part of the original definition of ‘waters of the United States.’ In fact, as the placement of any fill material in a wetlands requires a permit and mitigation, the EPA and the Corps would essentially control development in even the most innocuous of places, like your own backyard. Hopefully, by seeking input and public comment, a balance can be reached which protects our rivers, streams, and adjacent wetlands while allowing normal development of areas that were never intended to be regulated under the Clean Water Act.