The Administrator of the U.S. Environmental Protection Agency (EPA) and the Assistant Secretary of Civil Works for the U.S. Army (essentially the Corps of Engineers since they implement portions of the Clean Water Act) signed a “Recodification of a Pre-existing Rule” on September 12, 2019. According to the summary in the text, the Recodification “repeals” the Clean Water Rule of 2015. I have written multiple times in this blog on the complicated regulatory and legal issues surrounding the Clean Water Rule of 2015. For background check out these links: https://waterblogger.org/water-quantity/waters-of-the-united-states/
The item being recodified is the definition of the “Waters of the United States” (WOTUS) under the Clean Water Act (CWA), or in simpler terms, what bodies of water are regulated under the Clean Water Act. In a nutshell the Clean Water Rule of 2015 was seen by many states as a water grab by the federal government, because states have traditionally managed waters within their boundaries and the new definition expanded the water bodies covered by the CWA.
However the definition of WOTUS which existed prior to the Clean Water Rule of 2015 was difficult to implement and a number of regulatory decisions made by federal agencies to include wetlands and water bodies adjacent to tributaries as WOTUS were appealed by landowners through the court system. A couple of these cases reached the Supreme Court. The Supreme Court directed the federal agencies to provide a resolution as to what bodies of water were WOTUS. As a result the EPA rewrote the regulations and used a science based approach to do so. The new regulations published in 2015 were dubbed The Clean Water Rule.
These rewritten regulations were a spectacular failure and since 2015 there has been an ocean of litigation. Lawsuits were brought against the Clean Water Rule by a group of 28 states. This litigation resulted in judgments that stopped implementation of the Rule in those states. Those 28 states have been operating under the original regulations ever since. The other 22 states have been operating under the new 2015 Clean Water regulations.
The purpose of the Recodification is to reinstate the original regulations which existed before the 2015 Clean Water Rule was implemented. With the Recodification all 50 states will be operating under the original regulations – at least until whatever new litigation gets underway. The Recodification text gives four reasons that support the repeal.
First, a Supreme Court decision dictated that the EPA and the Corps of Engineers needed to define the limits of their authority to implement the CWA. The 2015 Clean Water Rule failed to do so. (A lot of states envisioned that the lack of a limitation could lead to every drop of water in the U.S. being subject to the CWA.)
Second, the 2015 Clean Water Rule didn’t recognize, preserve, and protect the primary responsibility and rights of the states to manage their own land and resources. (The western states and the big agricultural states jealously guard their right to manage water within their state boundaries so the Clean Water Rule, by expanding the federal government’s regulatory authority over water bodies, really riled them up.)
Third, without any authorization from Congress the 2015 Clean Water Rule provided a regulatory framework that could have led to encroachment on the state’s land use planning authority. (States were concerned about traditional state and local authority over land use activities like conversion of land for agricultural and other uses.)
Lastly, the 2015 Clean Water Rule’s attempt to define the scope of a tributary or adjacent waters inclusion under the CWA resulted in some procedural errors and lacked adequate record support. (Basically a couple of court cases said EPA didn’t meet the arbitrary and capricious standard under the Administrative Procedures Act. It looked like the agency while writing the final regulations had just pulled a bunch of numbers out of a hat to define the distance a tributary or adjacent water had to be from a WOTUS to be included as a regulated water body.)
The Recodification has not yet been published in the Federal Register so it is not yet being implemented. It is also being called “Step 1.” After the Recodification, “Step 2” will be implemented. “Step 2” just happens to be a new Rule defining WOTUS. This new rule published for comment in 2018 tries to simplify the definition of a “WOTUS” by making it a legal definition instead of a definition based on science. A description of this new Rule can be found at this link: https://waterblogger.org/general-information/revised-rule-on-the-definition-of-waters-of-the-united-states/
Stay tuned. I’ll keep you up to date as the regulation winds its way through further trials and tribulations.