July 27, 2018
On July 12, 2018, the U.S. Environmental Protection Agency ("EPA") and the U.S. Army Corps of Engineers (the "Corps") published a Supplemental Notice of Proposed Rulemaking to repeal the regulation that defines "waters of the United States" issued by the Obama Administration under the Clean Water Act in 2015 (the “2015 WOTUS Rule”). The Supplemental Notice provides additional support for the initial proposal to repeal the 2015 WOTUS Rule issued on June 27, 2017. The public comment period under this Supplemental Notice of Proposed Rulemaking ends on August 13, 2018.
This Supplemental Notice of Proposed Rulemaking is the latest in a series of steps intended to repeal and replace the 2015 WOTUS Rule. On February 28, 2017, President Donald Trump signed an executive order directing EPA and the Corps to propose a new rule that rescinds or revises the WOTUS Rule. On March 1, 2017, EPA and the Corps issued a notice of intent to review and rescind or revise the WOTUS rule. On July 27, 2017, the EPA and the Corps published a proposal to repeal the WOTUS rule. This Supplemental Notice provides additional support for the proposal to repeal issued in July of 2017 and is likely an effort to buttress the rulemaking in preparation for litigation that is almost certain to follow.
Following the directive of the February 28, 2017 executive order, the March 1, 2017 notice of intent directed the agencies to consider the late Justice Antonin Scalia's opinion in Rapanos v. United States, 547 U.S. 715 (2006). Justice Scalia's opinion argued that the Clean Water Act applied only to "navigable waters" that are connected by a surface flow during part of the year. Justice Scalia's opinion voiced the plurality opinion in a decision split 4-1-4. Justice Kennedy wrote a separate and significantly broader opinion. Justice Kennedy's opinion argued that waters must have a "significant nexus" to navigable waters. The WOTUS rule drafted in 2015 by the Obama administration followed Justice Kennedy's broader opinion in the Rapanos decision. The July 27, 2017 Notice and the Supplemental Notice propose to repeal the 2015 WOTUS Rule and to recodify the pre-2015 regulation. Justice Kennedy’s retirement from the Supreme Court at the end of this month is likely to impact any future litigation over the rule.
The WOTUS rule has been subject to lengthy litigation. On January 22, 2018, the Supreme Court held that the 2015 WOTUS Rule is subject to direct review in the district courts. Litigation before the district courts has resulted preliminary injunctions for the rule in 24 states with other states seeking similar preliminary injunctions. While the proposed revision of the WOTUS rule is likely good news for developers, the proposed repeal of the 2015 WOTUS Rule should not have much impact in the short term due to the preliminary injunctions issued by the courts. We still recommend that developers should plan and prepare for more delay in projects that include property with the potential for jurisdictional waters and wetlands. Developers should continue to build additional time into project schedules for agency action where possible.
A copy of the Supplemental Notice of Proposed Rulemaking and related documents are available on the EPA website at the following link: https://www.epa.gov/cleanwaterrule.
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