The Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) have proposed to extend the date that the 2015 Clean Water Rule will become effective to 2020, thereby allowing sufficient time for the Trump administration to replace the Rule. The proposal comes on the heels of the U.S. Supreme Court hearing arguments to determine the proper venue to hear challenges to the 2015 Clean Water Rule, which is currently stayed due to pending litigation. The EPA/Corps proposal would delay implementation of the 2015 Clean Water Rule in the event the Supreme Court lifts the stay and puts the Rule into effect. It also will allow time for the agencies to implement a two-step process to: (1) rescind the 2015 Rule and (2) replace it with a new, streamlined rule and new definition of “waters of the United States.”
The EPA/Corps’ proposal to rescind the convoluted and complex 2015 Clean Water Rule, which defines the EPA/Corps jurisdictional limits, elicited nearly 200,000 comments. Many businesses, agricultural groups and a group of Republican U.S. senators support eliminating the Rule. They view the Rule’s broad definition of “waters of the United States” as an unlawful agency power grab that intrudes on the state and local authority over water use planning and resources. These parties maintain that the Rule “is not based on the experience and expertise of the Corps of Engineers.” Farmers and agricultural groups have vehemently supported the rescission because of expected economic damage and exposure to litigation.
Environmental groups challenge the legality of the proposed rescission. Their comments argue that the “agencies must fully explain their rationale and justify the substance and merits” of the pre-2015 legal regime and address public comments—which the environmental groups claim the agencies have failed to do. Particularly, the groups claim that the agencies’ economic analysis justifying the repeal is flawed because it incorrectly “zeroed out” all the benefits associated with wetlands protection.
Withdrawal of the current Clean Water Rule is just the first step. The agencies intend to create a new rule that defines “waters of the United States” in a way that aligns with the standards President Trump set forth in his February 2017 executive order, and plan to move quickly to implement the new rule by the end of 2018.
Connell Foley will continue tracking the evolutions of the Clean Water Rule and the pending U.S. Supreme Court case.