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Epic WOTUS Thriller for your Summer Reading List

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by Michael C. Ford

There’s yet more breaking news on the Trump administration’s efforts to clarify the scope of the federal government’s Clean Water Act (CWA) jurisdiction. On June 29, 2018, the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) released a Supplemental Notice of Proposed Rulemaking to “clarify, supplement and seek additional comment” on their proposal last summer (July 27, 2017) to repeal the controversial 2015 amendments to the definition of  “Waters of the United States” finalized in the waning days of the Obama administration (“2015 Amendments”).  (As faithful readers and other CWA jocks are aware, the 2015 Amendments were subject to a barrage of lawsuits culminating in the Supreme Court’s recent decision clarifying that jurisdiction lies with district courts, not appellate courts.  The ongoing litigation has essentially tabled the effectiveness of the 2015 Amendments, and the agencies recently extended the effective date to 2020 to provide some breathing room while the agencies’ sort out their new regulatory approach).  The agencies’ proposal last summer to repeal the 2015 Amendments received almost 700,000 comments, which explains at least in part their decision to issue the Supplemental Notice.  Comments on the Supplemental Notice will be due 30 days after publication in the Federal Register (likely early July).  There is no shortage of issues to comment on for the motivated stakeholder.

The Supplemental Notice confirms the agencies’ intent to repeal the 2015 Amendments and possibly consider a new set of amendments to clarify CWA jurisdiction.  Post-repeal, CWA jurisdiction would be determined under the regulatory regime existing prior to the 2015 Amendments.  The Supplemental Notice provides a thorough explanation of the agencies’ rationale for proposing to repeal the 2015 Amendments, including an exhaustive review of the history of the CWA jurisdiction issue, including relevant case law, and the various developments since the 2015 Amendments.  The Supplemental Notice also solicits comment on the repeal issues and rationale.

The agencies’ rationale for repealing the 2015 Amendments detailed in the Supplemental Notice include increasing regulatory certainty; concerns with expanding CWA jurisdiction beyond the preexisting regulatory program; and the alteration of federal and state/tribal relationships in implementing the CWA.  The Supplemental Notice explains the regulatory uncertainty created by the 2015 Amendments and also explains how the 2015 Amendments may exceed the agencies’ authority under the CWA by distorting the “significant nexus” standard beyond reasonable bounds, discounting the meaning of “navigable,” and placing too much emphasis on the scientific “connectivity” study underpinning the 2015 Amendments and the previous administration’s interpretation of “significant nexus,” all of which have the likely impact of significantly expanding CWA jurisdiction.  The Supplemental Notice also elaborates on the agencies’ concerns that the expansion of CWA jurisdiction may improperly alter the role of state and tribal authorities envisioned by the CWA.

Stakeholders who commented on last summer’s proposal do not need to submit repetitive comments on the Supplemental Notice, but for any interested stakeholder, the 90-page Supplemental Notice is a great summer read (perhaps while relaxing on or by a traditionally-navigable water).