In November 2017, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps, or jointly Agencies) published a proposed rule (proposed Applicability Rule) adding an applicability date to the Agencies’ 2015 Rule defining “Waters of the United States” (WOTUS) under the federal Clean Water Act (CWA). Currently, there is a nationwide stay of the 2015 Rule issued by the Sixth Circuit Court of Appeals. However, the Sixth Circuit’s jurisdiction over the 2015 Rule is being challenged in the Supreme Court. The proposed Applicability Rule would add an applicability date beginning two years after the publishing of a final rule to prevent the 2015 Rule from coming into effect in part of the country should the U.S. Supreme Court find that the Sixth Circuit lacks original jurisdiction. It would also provide clarity and consistency while the Agencies rescind the 2015 Rule. [Definition of “Waters of the United States”––Addition of an Applicability Date to 2015 Clean Water Rule, 82 Fed. Reg. 55541 (proposed Nov. 22, 2017), https://www.gpo.gov/fdsys/pkg/FR-2017-11-22/pdf/2017-25321.pdf]
Background
Congress enacted the Clean Water Act in 1972 to maintain and restore the integrity of the nation’s waters. The EPA is largely responsible for administering the CWA, but the Corps has jurisdiction over dredge and fill permitting (i.e., 404 permits). The CWA generally prohibits the discharge of pollutants, including dredge and fill materials, into ‘navigable waters’ without a permit. “Navigable waters” is defined as “waters of the United States.”
Over time, agency guidance and case law have shaped the definition of WOTUS. See, Recodification of Pre-Existing Rules, 82 Fed. Reg. 34899 (proposed July 27, 2017). In 2006, the Supreme Court decided Rapanos v. United States, 547 U.S. 715 (2006), a plurality decision that offered different interpretations of WOTUS. Id. at 34900–01. Thereafter, the Agencies issued guidance addressing the Court’s plurality decision in Rapanos. Id. Motivated by stakeholders’ desire for clarity and consistency, the Agencies issued the 2015 Rule defining the scope of WOTUS, thus codifying a binding definition. See id; see also Clean Water Rule: Definition of “Waters of the United States”, 80 Fed. Reg. 37054 (June 29, 2015).
Following the release of the 2015 Rule, several parties, including 31 states, challenged the legality of the 2015 Rule in several U.S. District Courts and Courts of Appeals. During this time, the Sixth Circuit Court of Appeals placed a nationwide stay on the 2015 rule. Recodification of Pre-Existing Rules, 82 Fed. Reg. at 34091. The District Court for North Dakota also preliminarily enjoined the 2015 Rule in 13 states. Id. Early this year, the Supreme Court granted certiorari to determine whether the Court of Appeals has original jurisdiction to review the 2015 Rule (i.e., whether the Sixth Circuit had jurisdiction to stay the 2015 Rule). See id.
The 2017 Proposed Rule, the Lingering Impact of the Sixth Circuit’s Decision and the Supreme Court’s Grant of Review
In February of this year, President Trump issued an Executive Order directing the Agencies to review the 2015 Rule. See, Addition of an Applicability Date to 2015 Clean Water Rule, 82 Fed. Reg. 55541 (proposed Nov. 22, 2017). In response, the Agencies published a proposed rule (2017 Proposed Rule) to rescind the 2015 Rule. Recodification of Pre-Existing Rules, 82 Fed. Reg. at 34901. The 2017 Proposed Rule outlined a two-step process to rescind the 2015 Rule, and initiated the first step, i.e., rescinding the 2015 Rule and recodifying the previous WOTUS definition. Id. The second step requires the Agencies to reconsider the definition of the WOTUS in light of Justice Scalia’s plurality opinion in Rapanos. Id. Last month’s proposed Applicability Rule is part of the Agencies’ efforts to rescind the 2015 Rule and reevaluate the definition of WOTUS. See, Addition of an Applicability Date to 2015 Clean Water Rule, 82 Fed. Reg. at 55543.
Currently, the Sixth Circuit’s nationwide stay is preventing the 2015 Rule from coming into effect. Id. However, if the Supreme Court decides that the Court of Appeals does not have original jurisdiction to hear complaints over the 2015 Rule, the nationwide stay will be removed. Id. This would cause an uneven application of the 2105 Rule because it would not be in effect in the thirteen states enjoined by the District Court for North Dakota but would be effective in other states. See, id. at 55543–44. As such, the proposed Applicability Rule is an interim step to maintain the “status quo” in the event the nationwide stay is lifted before the Agencies can rescind the 2015 Rule through the lengthy rulemaking process. Id. at 55544.
In contrast to the 2017 Proposed Rule, the proposed Applicability Rule is limited to adding an applicability date to the 2015 Rule, and does not deal with substantive issues related to the scope of the WOTUS. Id. at 55545. Once the comments are reviewed, the Agencies will decide whether the two-year delay in the proposed Applicability Rule should be shorter or longer to effectuate the goal of maintaining clarity and consistency. Id. at 55544. Because the proposed Applicability Rule does not deal with substantive issues, the Agencies expect to issue a final rule relatively soon.
Conclusion and Implications
The proposed Applicability Rule is a prophylactic measure to ensure that the 2015 Rule does not come into effect while the Agencies work to rescind the 2015 Rule. This would prevent an uneven application of the 2015 Rule should the Supreme Court decide the Sixth Circuit does not have original jurisdiction over litigation of the 2015 Rule. In doing so, the Agencies would maintain the pre-2015 definition of WOTUS currently in effect as a result of the Sixth Circuit’s nationwide stay regardless of the Supreme Court’s decision. It would also give the Agencies enough time to rescind the 2015 Rule while maintaining clarity and consistency. As such, the proposed Applicability Rule should be seen as a step toward rescinding the 2015 Rule rather than taking a step away from it.
The 2015 Rule arguably increased the scope of the Agencies’ jurisdiction over the waters that qualify as WOTUS. Thus, the decision to delay the applicability of the 2015 Rule––and, ultimately, to rescind the 2015 Rule––has the most impact on those parties that would suddenly be subject to the CWA’s permitting regime under the 2015 Rule defining the scope of “waters of the United States.”
(Heraclio Pimentel, Steven Anderson)
