Written by Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program
On June 27, 2017, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) announced their plan to repeal the Obama Administration’s Waters of the United States (WOTUS) Rule. The EPA and the Corps’ proposal involves two steps. First, the agencies propose to “rescind” Obama’s WOTUS rule and “re-codify,” or re-enter, the definition of WOTUS “that existed prior to 2015” into the federal regulations. The pre-2015 rule would serve as a placeholder until the agencies are able to carry out the second part of their plan. The second part of the plan involves developing and proposing a new definition of WOTUS. This announcement comes several months after President Trump called for either a repeal or revision of the WOTUS Rule in his February 28, 2017 Executive Order (EO). The EO was quickly followed by the EPA and other agencies filing a Notice of Intention to Review and Rescind or Revise the Clean Water Rule (Notice). The EO can be found here, and the Notice here.
What was the Obama Administration’s WOTUS Rule?
The WOTUS Rule went into effect on August 28, 2015. The Rule expanded the meaning of “waters of the United States,” or those waters protected under the Clean Water Act (CWA), to include “tributaries to interstate waters, waters adjacent to interstate waters, waters adjacent to tributaries of interstate waters, and other waters that have a significant nexus to interstate waters.” Furthermore, the Rule stated that tributaries are WOTUS when they flow into navigable waters, even if their flow was not constant. The rule also elaborated on the meaning of “adjacent waters.” For more information about the WOTUS Rule, see our blog post from earlier this year. The Rule as it was released in the summer of 2015 can be found here.
How will “Waters of the United States” be defined?
In the short term
Step one of the EPA and the Corps’ plan calls for a repeal of the Obama Administration’s definition of WOTUS, and a reimplementation of the WOTUS rule that existed prior to 2015. In order to do this, the agencies are proposing a rule. The proposed rule calls for the Code of Federal Regulations—in particular, 33 C.F.R. §328.3, to be amended to reflect the previous definition of WOTUS. Notably, this definition does not include the Obama Administration’s expanded descriptions of “tributaries” or “adjacent waters.” Furthermore, there is no mention of “significant nexus.” This interim definition of WOTUS proposed by the EPA and the Corps can be found in the proposed rule, here.
In the long term
The second step of the EPA and the Corps’ plan calls for the agencies to perform a “substantive re-evaluation” of the definition of WOTUS. Any re-evaluation of the definition will likely take Trump’s EO into account, which called for the EPA and other agencies to, in any “[f]uture [r]ulemaking,” “consider interpreting the term ‘navigable waters’” as Justice Scalia did in Rapanos v. U.S. The CWA defines “navigable waters” as “waters of the United States, including territorial seas.” Thus, “navigable waters” and “WOTUS” are one in the same. Scalia’s interpretation rejected the idea that navigable waters and WOTUS could come from channels where water flow was only occasional. Justice Scalia asserted that navigable waters/WOTUS must be, for the most part, permanent bodies of water. Given the language in Trump’s EO, it is likely that the second step of the plan will involve a proposed rule that includes a definition of WOTUS that closely resembles Scalia’s interpretation. More information on Scalia’s interpretation can be found in our earlier blog post.
It is important to keep in mind that even if the EPA and the Corps successfully repeal and replace the previous administration’s definition of WOTUS, it is still very likely that opponents will challenge any new definition. Furthermore, both the short term and long term parts of the plan have to go through the rulemaking process, including a comment and review period, before they can become effective. As a result, the debate over the meaning of WOTUS is likely far from finished.