Last Thursday the EPA and Department of the Army announced that the agencies are repealing a 2015 rule that had proposed to expand the definition of “waters of the United States” under the Clean Water Act.

Despite claims from some activists that “the sky is falling” with this change in environmental regulation, the real impact will be little more than the acorn that fell on Chicken Little’s head, because the agencies are at the same time recodifying the longstanding and accepted regulatory definition of waters of the United States that existed prior to the June 29, 2015 rule (that sought to expand what is “navigable water”). To be clear what is being repealed was a proposed rule that never went into effect.

With this final repeal, the agencies will implement the pre 2015 regulations, which are currently in place in more than half of the states (i.e., there are some states, tribal and local governments with their own definitions of jurisdictional waters). This September 12, 2019 final rule takes effect 60 days after publication in the Federal Register.

In announcing the final rule, in advance of it being published, the agencies described that they are repealing the 2015 rule for four principal reasons:

First, the agencies conclude that the 2015 rule did not respect the legal limits on the scope of the agencies’ authority under the Clean Water Act as intended by Congress. Second, the agencies conclude that in promulgating the 2015 rule the agencies failed to adequately consider and accord due weight to the policy of the Congress in Clean Water Act section 101(b) to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution” and “to plan the development and use . . . of land and water resources.” 33 U.S.C. 1251(b). Third, the agencies repeal the 2015 rule to avoid interpretations of the Clean Water Act that push the envelope of their constitutional and statutory authority absent a clear statement from Congress authorizing the encroachments of federal jurisdiction over traditional State land-use planning authority. Lastly, the agencies conclude that the 2015 rule’s distance-based limitations suffered from certain procedural errors and a lack of adequate record support.

With this final rule, the regulations defining the scope of federal Clean Water Act jurisdiction will be those portions of the federal law as it existed before the amendments promulgated in the 2015 rule, being the 1986 regulatory definition at 40 CFR 230.3(s).

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).

There has been perversion of what are “waters of the United States.” From the 1970s through the 1990s, federal courts as well as the agencies interpreted an expanded bigger moving upstream 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 Rapanos v. United States, 547 U.S. 715 (2006) decision were clear the agencies exceeded their authority but 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 (.. under very different political times) to provide that needed certainty and predictability.

This was a signature issue for the President in the 2016 election. 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,” in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos.

It has been over 40 years since the Cuyahoga River caught fire spurring 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 a definition of navigable water from the 1899 Rivers and Harbors Act to describe the scope of the Clean Water Act, not only does not well serve the potable water issues of the day, and are not only junk science, but silly talk.

This is a positive step toward what is properly “navigable waters of the United States” and maybe best characterized as back to the future, in it will no doubt be challenged in the courts and is a long way from being final.

Read the prepublication version of this final rule.