In an attempt to bring clarity following the recent Supreme Court decision—which as noted in our prior post will result in expiration of the nationwide stay of the 2015 revised definition of “waters of the U.S.” that was imposed two years ago by the Sixth Circuit Court of Appeals—EPA and the Army Corps of Engineers (Corps) issued a final rule extending the applicability date of the 2015 revised definition to February 6, 2020.  With this final rule, the Agencies seek to ensure that the pre-2015 “waters of the U.S.” definition will remain in place consistently throughout the country while the Agencies consider possible revisions. As expected, the final rule has already been subject to judicial challenge, further ensuring that the scope of “waters of the U.S.” will continue to remain uncertain in the near future as these challenges play out.

The Clean Water Act “waters of the U.S.” definition applied under EPA and Corps regulations has significant consequences for routine pipeline, terminal and other facility operations and maintenance activities as well as permits for crossing waters or affecting wetlands for proposed expansion and new construction projects.  By way of background, the 2015 rule revised and expanded the WOTUS definition to include waters that have a “significant nexus” to traditionally jurisdictional waters (in line with Justice Kennedy’s opinion regarding the scope of the Clean Water Act in Rapanos v. United States, 547 U.S. 715 (2006)).  The expanded definition included waters once not covered by EPA and the Corps’ Clean Water Act regulations within the scope of these regulations, such as certain tributaries, wetlands, and adjacent waters.

After issuance, the 2015 rule was enjoined in 13 states by the North Dakota District Court in 2015 and subsequently stayed nationwide by the Sixth Circuit Court of Appeals.  The Supreme Court recently determined, however, that the Circuit Courts lack jurisdiction to hear challenges to the 2015 rule, and directed the Sixth Circuit to dismiss the pending petitions for review.  As a result, when the nationwide stay expires, the rule would be enjoined in 13 states but go into effect in the rest of the country pending other legal challenges and issuance of a revised rule.  The Agencies finalized the applicability date rule (proposed in November) because of the uncertainty, confusion, and inconsistencies with respect to the 2015 rule’s applicability.

In response to several Executive Orders, the Agencies have already undertaken a two-step rulemaking process to review and revise the 2015 rule.  The Agencies initiated the first step by proposing to rescind the 2015 rule’s WOTUS definition last July and continue to implement the pre-2015 definition.  Stakeholders responded with more than 680,000 public comments on the proposal.  In the second step, the Agencies intend to conduct “a substantive re-evaluation” of the WOTUS definition.  Notably, the Supreme Court noted the challenges associated with defining WOTUS, describing it as a “contentious and difficult task,” which could support an argument for agency deference for a new rule.

The final rule adding the 2020 applicability date has already been challenged in at least one district court.  Numerous states—New York, California, Connecticut, Maryland, New Jersey, Oregon, Rhode Island, Vermont, Washington, and Massachusetts—and the District of Columbia filed a complaint in the Southern District of New York.  The complaint alleges that (1) neither the Clean Water Act nor the Administrative Procedure Act gives the Agencies “authority to suspend the Clean Water Rule after its effective date passed;” (2) that the applicability date rule effectively repeals the 2015 rule without providing the public with “a meaningful opportunity” to comment; and (3) the Agencies failed “to articulate a rational explanation for the rule,” failed to consider the Clean Water Act’s objectives, ignored earlier “scientific findings without a reasoned explanation for doing so,” and “did not reasonably consider or discuss alternatives.”

For the time being, the pre-2015 “waters of the U.S.” definition will remain in place (as acknowledged by the Supreme Court in a footnote to its decision), and the focus will most certainly be in the federal district courts as they work through the challenges to the 2015 rule.  Stay tuned.