The US Army Corps of Engineers (COE) and US EPA issued a supplemental notice of proposed rulemaking on July 12, 2018
to provide regulatory support and clarification regarding the Agencies’ 2017 proposal
to repeal changes made to the definition of “Waters of the United States” (WOTUS) under the previous administration in 2015.
In the notice, EPA states that some of those who submitted comments on the 2017 proposal may have been confused about the scope or content of what EPA proposed. In short, the July 12, 2018 notice clarifies that:
- EPA has proposed a full and permanent repeal of the 2015 WOTUS Rule; and
- Commenters are welcome to address legal and policy reasons for or against repeal.
Last, the supplemental notice provides backing for EPA’s decision to repeal the 2015 Rule using the notice-and-comment rulemaking process. Both the Administrative Procedures Act (APA) and the CWA authorize Federal agencies to create regulations that repeal or revise older rules. EPA also quotes the Supreme Court: “…agencies are free to change their existing policies as long as they provide a reasoned explanation for the change.”
How WOTUS Changes Affect Regulated Facilities
How EPA defines “waters of the United States” is critical to enforcement of the nation’s water laws. This definition tells the regulated community which bodies of water—oceans, lakes, rivers, streams, creeks, swamps, and more—are subject to the requirements of the Clean Water Act (CWA).
EPA’s jurisdiction under the Clean Water Act has implications for environmental programs like:
- Oil Discharge Notifications (40 CFR 110).
- Spill Prevention, Control, and Countermeasure Plans (40 CFR 112).
- NPDES Permitting and Stormwater Discharge Permits (40 CFR 122).
- The “per-industry standards” (40 CFR 405-471).
- Dredge and Fill Permitting (33 CFR 323).
What Was in the 2015 WOTUS Rule?
The 2015 Final Rule
arguably expanded EPA’s jurisdiction to protect the nation’s waters, in part by broadening the Agency’s interpretation of the CWA. In the rule, EPA added and/or amended regulatory definitions for terms like “adjacent,” “tributary,” and “navigable” that are found in Clean Water Act §502(7).
The 2015 rule hinged largely on the idea of regulating waters that share a “significant nexus” with waters of the United States. The idea of a “significant nexus” was articulated by Supreme Court Justice Kennedy to describe waters that, though not protected under the Clean Water Act, may impact waters within EPA’s jurisdiction due to proximity or flow of water from one body to another. (See Rapanos v. US.
A ‘‘significant nexus,” according to the 2015 rule, means “a water, including wetlands, that either alone or in combination with other similar situated waters in the region, significantly affects the chemical physical or biological integrity” of any water under EPA’s jurisdiction. EPA now says that “…rather than achieving its stated objective of increasing predictability and consistency under the CWA, the 2015 Rule is creating significant confusion and uncertainty for agency staff, regulated entities, states, tribes, local governments, and the public….”
For those reasons, EPA plans to repeal entirely the changes made in 2015.
What’s in the Recodification Proposal?
If the July 2017 proposal is finalized, the regulations that define the scope of EPA’s Clean Water Act enforcement authority will return to their pre-2015 form.
Even if finalized, the proposed repeal will not have an immediate
impact on facilities, given that the enforcement of the 2015 Final Rule is already on hold.
During his tenure, former EPA Administrator Scott Pruitt officially delayed the applicability of the 2015 Rule until February 2020 after legal challenges and a nationwide stay put in place. For now, EPA will continue to more narrowly interpret the phrase “navigable waters” as required by a Presidential Executive Order issued last year that requires EPA to rescind or revise
the 2015 Final Rule.
Hopefully for EHS professionals, EPA’s next
attempt to re-define WOTUS will result in a clear, sensible, and intuitive way to determine which bodies of waters are protected by regulation.
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