In order to solicit input on a proposed regulatory change, the Environmental Protection Agency (“EPA”) has issued a supplemental notice seeking comment for the revised “waters of the United States” rule (also known as the “WOTUS Rule”).  Pursuant to the Clean Water Act’s (“CWA”) charge to protect the integrity of the Nation’s waters,[1] the CWA prohibits the deposition of dredge or fill material into “waters of the United States,” which are defined by what has come to be known as the WOTUS Rule.[2]

The current WOTUS Rule was enacted in 2015 and follows U.S. Supreme Court Justice Kennedy’s “significant nexus” test set forth in his concurring opinion in Rapanos v. United States.[3]  The “significant nexus” test extends the CWA’s jurisdiction to not only traditional navigable waters, such as those “waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce” or territorial seas, but also includes waters with a “significant nexus” to and those that are “adjacent to” more traditional water features.[4]

On February 28, 2017, President Donald Trump signed an executive order requiring the Administrator of the EPA and the Assistant Secretary of the Army Corps to revisit the WOTUS Rule, and specifically consider the interpretation of the term “navigable waters” as Justice Scalia interpreted that term in the plurality opinion in Rapanos v. United States.[5]  Justice Scalia interpreted the term “navigable waters”  to include “those relatively permanent, standing or continuously flowing bodies of water  forming geographic features that are described in ordinary parlance as streams[,] ... oceans, rivers, [and] lakes.”[6]

The EPA subsequently issued a notice of proposed rulemaking in July 2017 initiating the process to repeal and revise the definition of “waters of the United States.”  More recently, the EPA has issued a supplemental notice in order to provide further support to the newly proposed WOTUS Rule.  The proposed WOTUS Rule essentially seeks to narrow the jurisdictional reach of the CWA by implementing the February 28, 2017 executive order and adhering to Justice Scalia’s interpretation of “navigable waters” rather than Justice Kennedy’s “significant nexus” test.

The supplemental notice provides a more detailed legal analysis of the reasons why the 2015 version of the WOTUS Rule should be repealed.  As some have noted, by issuing a supplemental notice that contains more detailed legal analysis the EPA seems to be attempting to reinforce the proposed rule in anticipation of legal challenges.

Written comments on the proposed WOTUS Rule will be accepted by the EPA until August 13, 2018.  Commenters do not need to resubmit comments already provided in the response to the July 27, 2017, notice of the proposed Step One rulemaking.

 [1] 33 U.S.C. § 1251.

[2] It should be noted the term “navigable waters” is defined under the CWA as “…waters of the United States.” 33 U.S.C. § 1362(7).

[3] Rapanos v. U.S., 547 U.S. 715, 753-754, 789 (2006).

[4] 80 Fed. Reg. 37054 (June 29, 2015) codified at 33 C.F.R. § 328.3(a) – (b).

[5] Exec. Order No. 13,778; 82 Fed. Reg. 12,532 (March 6, 2017).

[6] Rapanos, 547 U.S. at 716.

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