As recent events show, the Trump Administration is moving ahead with repealing and replacing the controversial Waters of the United States (WOTUS) rules that the Obama EPA issued in 2015. Among the most recent news:
On April 19, EPA officials met with associations representing local and regional governments and water resource agencies. EPA’s goal was to obtain input on replacement rules. On May 9, EPA sent letters to the nation’s governors, also seeking WOTUS input.
Rather than combining actions, the Army Corps of Engineers and EPA have agreed on a two-step process. They will first seek to repeal the 2015 rule and replace it with the prior WOTUS rules, which include 2008 guidance issued after the U.S. Supreme Court’s Rapanos The Army Corps and EPA will then propose a replacement.
On May 2, the agencies sent a proposed rule to OMB that would repeal the 2015 rule. This is currently under review by OMB’s Office of Information and Regulatory Affairs (OIRA), a process that could last up to 90 days.
The road ahead will likely be bumpy, as the Administration will have to rescind a rule that draws on extensive legal and scientific support and that took four years to complete. Creating a replacement rule will be equally difficult given the conflicting interpretations of the meaning of “waters “ from Justice Anthony Kennedy and the late Justice Antonin Scalia in their Rapanos decisions. (For more about this, click here and here.)
The Administration’s repeal and replace effort will also likely face delays because it will have to follow the same Administrative Procedure Act steps as the original rule. In redefining the WOTUS rules in 2015, the Obama EPA compiled a massive record consisting of thousands of pages of documents. This included a 400-page technical support document and a peer reviewed scientific study on “connectivity “ of streams.
Further, the EPA and the Army Corps must establish why the scientific and legal findings and conclusions in the 2015 rule are not consistent with the Clean Water Act as interpreted by the Supreme Court in Rapanos case and by other courts.
In order to support a rule based on Justice Scalia’s opinion, which is less expansive than Justice Kennedy’s, the EPA and the Army Corps would have to develop a legal and factual rationale for why Scalia opinion represents the Supreme Court’s holding.
No federal court has held that Scalia’s standard is the sole basis for establishing Clean Water Act jurisdiction. Further, any final “less expansive” rule must balance respect for federalism and property rights with the Clean Water Act’s water quality provisions.
Meanwhile, the Supreme Court this fall will consider whether federal courts of appeals or district courts have jurisdiction to hear challenges to the rule, to be argued in the fall
Unfortunately, the only real certainty is more litigation in the future.
Larry Liebesman Senior Advisor
A nationally recognized environmental lawyer with more than 35 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).
The views expressed here are those of the author and do not necessarily reflect the views of Dawson & Associates.