Same Old WOTUS

EPA and the Corps of Engineers have finalized their latest iteration of the definition of ‘waters of the United States.’ It is seemingly straightforward, consisting only of a list of jurisdictional waters, exclusions, and internal definitions. Although the agencies claim that the new definition “provides clear rules of the road” regarding the scope of jurisdiction, the agencies incorporate prior expansive jurisdictional principles into the rule.

The history of the regulatory definition of WOTUS is one of ever-increasing regulation of the nation’s waters. The original definition was relatively narrow, generally including traditional navigable waters (TNW). That definition was struck down by a federal district court, who held that the Congress intended to regulate more than TNW in enacting the Clean Water Act. Since then, and even though the statutory definition in the Clean Water Act has not changed, the agencies have embarked on a decades-long effort to increase the scope of jurisdiction.

The Supreme Court’s decision in the 2006 Rapanos case only served to fuel the regulatory expansion of jurisdiction. Justice Scalia enunciated a narrow view of the scope of jurisdiction, generally limiting jurisdiction to TNWs, relatively permanent tributaries, and truly adjacent wetlands. Justice Kennedy, in his concurring opinion, generally included additional waters and wetlands that had a “significant nexus” to TNWs. After Rapanos, the agencies issued a guidance document (the Rapanos Guidance) which incorporated both views. Not surprisingly, the Rapanos Guidance includes a rather expansive view of what constitutes a ‘significant nexus.’

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Hazardous Substance Response Plans Are Coming

Over thirty years after the requirement was first included in the Clean Water Act and after a suit was filed to force EPA to act, EPA has published a proposed rule relating to planning for worst-case discharges of hazardous substances. The comment period is open to May 27, 2022.

The Clean Water Act was amended by the Oil Pollution Act of 1990. As part of that amendment, a provision was added requiring the issuance of regulations mandating that certain facilities prepare and submit a plan “for responding, to the maximum extent practicable, to a worst case discharge, and to a substantial threat of such a discharge, of oil or a hazardous substance.” CWA Section 311(j)(5); 33 USCA 1321(j)(5). Of course, both the EPA and the U.S. Coast Guard have promulgated various regulatory requirements relating to discharges of oil, such as those in 40 CFR Part 112, as well as some requirements relating to hazardous substances. However, according to EPA, no single program covered all the requirements of CWA Section 311(j)(5).

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The 2015 WOTUS Rule Is Repealed

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. Continue reading “The 2015 WOTUS Rule Is Repealed” →

EPA’s 500th Day Victory Lap

On the 500^th day of the Trump Administration, EPA touted its “notable policy achievements,” highlighting nine such achievements in a “promises made, promises kept” format. However, some of the noted achievements are works in progress and perhaps need more concrete results before a ‘mission accomplished’ banner is hung at EPA headquarters.

The nine ‘achievements’ listed by EPA include: withdrawing from the Paris Climate Agreement, ensuring clean air and water, reducing burdensome government regulations, repealing the so-called “Clean Power Plan,” repealing the Waters of the United States Rule, promoting energy dominance, promoting science transparency, ending ‘sue and settle,’ and promoting certainty to the auto industry. Continue reading “EPA’s 500th Day Victory Lap” →

Clean Water Rule Jurisdiction Resolved in National Association of Manufacturers v. the Department of Defense But Uncertainty Prevails

On January 22, 2018, the United States Supreme Court issued its unanimous ruling in National Association of Manufacturers v. the Department of Defense, et al., No. 16-299. The decision resolves the issue of the proper court for judicial review of the Clean Water Rule (Rule) issued by the Environmental Protection Agency (EPA) and the Corps of Engineers (Corps).

This article will provide some background about the Rule and legal challenges, information about the Supreme Court’s ruling, and highlight some of the uncertainties created in the wake of the decision. Continue reading “Clean Water Rule Jurisdiction Resolved in National Association of Manufacturers v. the Department of Defense But Uncertainty Prevails” →

EPA Unveils Framework For Industry Input on Regulations

Since the beginning of the Trump administration, many of the rules issued by the Obama administration, such as the Clean Power Plan and the Clean Water Rule, have been targeted for review. Scott Pruitt and EPA have been in roll-back and repeal mode. However, with the newly announced Smart Sectors Program, EPA seems to be taking a positive approach to dealing with industry and the regulated community instead of merely dealing with previously issued rules. Continue reading “EPA Unveils Framework For Industry Input on Regulations” →

The Clean Water Rule Gets A Well-Needed Review

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. Continue reading “The Clean Water Rule Gets A Well-Needed Review” →

Will EPA achieve its core mission?

President Trump has signaled a desire to reduce the burden caused by environmental regulations. An executive order issued Jan. 30 requires that two rules be identified for repeal for every new rule proposed. He issued another executive order Feb. 24 announcing that it is the official policy of the U.S. to alleviate unnecessary regulatory burdens. At the same time, though, the president has stated he wants to reinvigorate the manufacturing and oil and gas development sectors, while also shortening the environmental review process for major infrastructure projects. Continue reading “Will EPA achieve its core mission?” →

ALERT: The Trump Administration’s First Week

President Trump and his staff have taken several steps to implement his environmental agenda.

As reported previously (see Freeze on Regulations), Mr. Trump’s Chief of Staff, Reince Priebus, on January 20, 2017, issued a Memorandum requiring, among other things, that all federal agencies postpone the effective date of all regulations published in the Federal Register but not yet effective as of January 20, 2017. EPA, on January 23, 2017, complied, postponing the effective date of thirty rules until March 21, 2017. See 82 Fed. Reg. 8499 (Jan. 26, 2017). The thirty regulations include the:

Risk Management Program revisions (previously effective on March 14, 2017),
Renewable Fuel Standards for 2017 (previously effective on February 10, 2017), and
Addition of a subsurface intrusion component to the hazard ranking system (previously effective on February 8, 2017).

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EPA and Corps Expand Their Jurisdiction Over Waters and Wetlands

Over the objections of multiple national, state, and local groups, the EPA and the Corps of Engineers have published their final rule regarding the definition of ‘waters of the United States.’ Although they claim that the new definition merely ‘clarifies’ their existing jurisdiction, it actually expands their regulatory authority to waters and wetlands to an extent not contemplated when the Clean Water Act (CWA) was originally passed. The scope of jurisdiction is critically important because a costly and time-consuming permit is required to place materials in wetlands or other waters deemed jurisdictional. Continue reading “EPA and Corps Expand Their Jurisdiction Over Waters and Wetlands” →