WOTUS repeal moves forward – and what this means for private sector permitting

Proctor Creek Watershed/Atlanta (Georgia)

The Trump Administration has officially started the process to repeal and replace the Obama Administration’s 2015 “Waters of the United States” (WOTUS) Rule. On June 27, EPA Administrator Scott Pruitt announced during testimony to Congress that EPA would issue a proposed rule to rescind the 2015 WOTUS rule, the first step in what promises to be a long and winding road toward a new rule.

Status

The proposed WOTUS repeal is the first step in implementing a major priority of the Administrator Pruitt and the Trump Administration. In ordering the agencies to replace the rule, President Trump directed the agencies to “consider interpreting the term ‘navigable waters ‘ in the Clean Water Act consistent with the 2006 Opinion of Justice Scalia in Rapanos  (relatively permanent surface connection to flowing streams and rivers) despite Justice Kennedy’s alternative “significant nexus “ test .

The June 27 proposal by the EPA and Army Corps of Engineers attempts to implement the President’s Order in several ways:

  • It seeks to restore the definition of “waters of the U.S.” in effect since 1986 and as implemented by EPA and the Army Corps in 2008 following Since the 2015 rule never really went into effect due to a Sixth Circuit stay order, the agencies reasoned that status quo would simply be restored without harming any “reliance” interests.

For more about legal issues surrounding the WOTUS rule, click here.

  • The proposal did not address the extensive scientific record that the previous EPA amassed in support of the 2015 policy. Rather, the rule relied on a 2009 Supreme Court opinion in Fox Broadcasting v. FCC allowing agencies to rescind a rule by providing a “reasoned explanation” for a policy change.
  • The agencies reasoned that the 2015 rule did not adequately consider the “federalism” policy embodied in Section 101(b) of the Clean Water Act, which recognized the primary responsibly of states to address water pollution issues.
  • The EPA and the Corps of Engineers will “more fully consider” the extent to which states and tribes have protected or may protect waters within their boundaries.

Also important to note, the Supreme Court will hear arguments this Fall on whether the U.S Court of Appeals or district courts have jurisdiction to hear WOTUS challenges.

The Road Ahead

The Administration’s effort to repeal the 2015 rule, will face legal obstacles, as opponents will undoubtedly sue under the Administrative Procedure Act. Their challenge will almost certainly target the EPA’s claim that its new policy rationale does not need to be based on changed facts or circumstances and therefore does not need to overcome the detailed scientific record under the 2015 rule.

In order to support a new rule based on Justice Scalia’s opinion that is less expansive than Kennedy’s “significant nexus”, the agencies would have to develop a legal and factual rationale for why Scalia’s opinion represents the Supreme Court’s holding in Rapanos despite the fact that no federal court has held that Scalia’s standard is the sole basis for establishing CWA jurisdiction.

Opponents will likely claim that a rule based on the Scalia test will leave much of the nation’s aquatic resources  unprotected.

Will Permitting be Any Easier?

While the result of this process remains uncertain, the Administration’s proposal to reinstate the pre-2015 rule status quo will at least provide some permitting clarity in the short run while the litigation plays out.

Importantly however, this status quo does not mean that the permit process will become easier. Permit applicants will still have to comply with federal and state regulatory requirements involving, for example, impacts to wetlands and endangered species, in negotiating CWA Section 404 permits.

Larry Liebesman
Senior Advisor

A nationally recognized environmental lawyer with more than 40  years of experience, including 11 years at the U.S. Justice Department, Larry specializes in federal Clean Water and Endangered Species Acts and the National Environmental Policy Act (NEPA).

 

Dawson & Associates is pleased to offer this blog as a forum for our colleagues to comment on timely issues. These commentaries reflect the diverse backgrounds and opinions of our team and do not necessarily reflect the views of our company or others affiliated with it.