EPA and the Army Corps of Engineers (the Corps) issued a prepublication version of a proposed rule that will rescind prior 2015 revisions to the definition of “waters of the U.S.” under the Clean Water Act (CWA), pending the issuance of a more substantive rulemaking that reevaluates the definition.  The prior revisions expanded federal jurisdiction over certain waters and prompted numerous judicial challenges and a subsequent nationwide stay of the rule.

The federal government has regulated interstate waters since the Rivers and Harbors Act of 1899.  At that time, the government’s primary concern was to keep navigable waters free of obstructions (such as logs and other debris) for commercial reasons.  It was not until 1972 that the CWA as we know it today was enacted, and it included a much expanded definition of “waters of the U.S.,” including wetlands, as a means of protecting those water bodies.  Over the years, EPA, the Corps and the U.S. Fish & Wildlife Service gradually expanded the scope of “waters of the U.S.” further, especially in defining wetlands.  This expansion became a significant concern for both commercial and residential entities alike, in terms of whether CWA discharge or wetland permits are required.  In recent years, it has been a major issue for pipeline construction projects in particular.

In response to significant public comments, complaints, and Supreme Court case law about the scope of “waters” and “wetlands” jurisdiction by EPA, EPA again expanded the definition of “waters of the U.S.” in 2015, impacting certain longtime exclusions including for converted cropland and waste treatment systems.  The revised 2015 Clean Water Rule has been the subject of heated judicial challenges on both substantive and procedural grounds.  The 2015 CWA Rule is currently stayed by the Sixth Circuit Court of Appeals.  It is against this backdrop that on June 27, 2017, EPA and the Corps issued a press release and pre-publication proposed rule to rescind the Clean Water Rule and reinstate the pre-2015 “waters of the U.S.” definition.  The announcement follows a February 28, 2017 Executive Order (EO) calling for EPA and the Corps to review and rescind or revise the Clean Water Rule, and a March 6, 2017 Notice of Intent issued by the Agencies stating they would take such actions.

The proposed rule is the first step in a two-step process to replace the definition of “waters” from the expanded 2015 scope. The EO directs the Agencies to “consider interpreting the term ‘navigable waters’” in a way that is consistent with the plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006).   Penned by Justice Scalia, the plurality opinion found that the term “Waters of the United States” “includes only those relatively permanent, standing or continuously flowing bodies of water” forming features such as streams, oceans, lakes, and rivers.  Id. at 737.  Justice Anthony Kennedy’s concurring opinion in Rapanos gave rise to the Agencies’ expanded definitions to include any water with a “significant nexus” to other waters, even if the nexus was subsurface.  80 Fed. Reg. 37,054, 37,056, 37,090 (June 29, 2015).  The Agencies’ 2017 press release states that they have “begun deliberations and outreach” to review and revise that approach, in accordance with the EO.

The purpose of the proposed rule is to “ensure certainty” with respect to the scope of CWA jurisdiction on an interim basis while the Agencies reevaluate and reissue a substantive proposed rule regarding the definition of “waters of the U.S.,” that “best effectuates the language, structure, and purpose of the CWA.”  The Agencies request comments on whether it is appropriate and desirable to recodify the status quo as an interim first step pending as substantive rulemaking.  Notably, the Agencies make clear that the interim measure does not undertake substantive reconsideration of the pre-2015 definition or solicit comment on those rules.  The Agency is also not soliciting comments on the scope of “waters of the U.S.” as that will be addressed in a second notice and comment rulemaking.  Comments on the Agencies’ proposed rule must be received on or before thirty days of the proposal’s publication in the Federal Register, which is pending.