Last week the Environmental Protection Agency and U.S. Department of the Army finalized a rule adding an applicability date to the 2015 Rule (that never went into effect) defining “waters of the United States.”
But, the 2015 Rule will now not be applicable until two years following publication of the applicability date rule in the Federal Register (scheduled to be this week), giving the agencies the time needed to reconsider the very fluid definition of “waters of the United States.”
The 2015 Rule “clarifying” the scope of “waters of the United States” was a politicization of science that would have resulted in tens of millions of new acres of privately owned land being removed from productive use and placed under the jurisdiction of the federal government.
For those uninitiated in the moving target clarifying what are “navigable waters of the United States,” defining where those waterways begin and end has since the enactment of the 1899 Rivers and Harbors Act been the subject of disputes between the federal government and land owners (predating the modern environmental movement).
This current action follows the February 28, 2017, Presidential Executive Order on “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” The Order states that it is in the national interest to ensure that navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the states under the Constitution. It also directs the EPA and the Army to review the existing Clean Water Rule for consistency with these priorities and publish for notice and comment a proposed rule rescinding or revising the rule, as appropriate and consistent with the law. Further, the Order directs the agencies to consider interpreting the term “navigable waters,” as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).
To meet the objective described in the Executive Order, the agencies are following a two-step process intended to finally provide certainty.
In this first step, the agencies are establishing a legal status quo in the Code of Federal Regulations, by proposing to rescind the 2015 Rule and recodify the regulation that was in place prior to issuance of the 2015 Rule; which is being implemented consistent with court orders staying that rule and with the agencies’ final rule adding an applicability date.
The agencies then plan to propose a new definition interpreting the jurisdictional bounds of the Clean Water Act that would replace the broader approach of the 2015 Rule, taking into consideration the principles that Justice Scalia outlined in the Rapanos plurality opinion. Justice Scalia’s opinion indicates Clean Water Act jurisdiction includes relatively permanent waters and wetlands with a continuous surface connection to relatively permanent waters.
You care about how “waters of the United States” is defined because what falls within the jurisdiction of the 1972 Clean Water Act is the “navigable waters,” defined as all “waters of the United States” (section 502). This is important because all Clean Water Act programs, including non-tidal wetland permits, pollution permits, and oil spill prevention and planning programs, apply only to “waters of the United States.” The Clean Water Act provides the discretion for the implementing agencies, EPA and the Army Corps of Engineers, to define this term in regulations, and this has been further interpreted by the courts.
There has been obfuscation of what “waters of the United States.” From the 1970s through the 1990s, federal courts as well as the agencies interpreted an expanded bigger scope of Clean Water Act jurisdiction as necessary to and consistent with the Act’s goals of protecting water quality. Supreme Court decisions in 2001 and 2006 held that the scope of navigable waters must be interpreted more narrowly. The justices in the 2006 Rapanos decision were split on how this was to be accomplished. The agencies have been working since the Supreme Court decisions to provide clarification and predictability in the procedures used to identify waters that are, and are not, covered by the Clean Water Act. The 2015 Rule, and this new rulemaking effort, reflect the agencies’ efforts to provide that needed certainty and predictability.
Specifically, under this rule, the 2015 Rule, which now does not go into effect until its applicability date two years from now, would be replaced. But claims that this somehow allows water to be polluted is not only not true, but the height of junk science.
The exact same regulatory text that existed prior to 2015 Rule (that gain never went into effect), which reflects the current legal regime under which the agencies are operating, would be re-codified in the Code of Federal Regulations.
This is not a good way to make environmental policy about clean water. It has been over 40 years since the Cuyahoga River caught fire and spurred the 1972 passage of the Clean Water Act. The law was intended to target big, point source pollution like sewage leaks and oil spills, and the continuing efforts to use it to use a definition of navigable water from the 1899 Rivers and Harbors Act to describe the scope of the CWA, not only does not well serve the potable water issues of the day, and are not only junk science, but silly talk.
Despite being published as a final rule, this positive step toward what is properly “navigable waters of the United States” is back to the future, but a long way from being final.