August 22, 2017

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EPA, Corps Propose Rescinding Clean Water Rule

The Environmental Protection Agency and Army Corps of Engineers on Tuesday announced a proposed rulemaking that would rescind the “Clean Water Rule” — which the agencies finalized in 2015 to revise the definition of “waters of the United States” subject to federal jurisdiction under the Clean Water Act — and recodify the prior regulatory definition of such waters. The action essentially would maintain the status quo, since the Sixth Circuit had already enjoined implementation of the Clean Water Rule nationwide pending the outcome of a legal challenge. But the agencies also said they intend to conduct a separate rulemaking to promulgate a new definition of waters of the United States that will consider the principles outlined in Justice Scalia’s plurality opinion for the Supreme Court in Rapanos v. United States, 547 U.S. 715 (2006). Both the repeal and the new definition would be consistent with direction given in an executive order signed by President Trump on February 28, 2017.

The proposed rulemaking comes as no surprise, given President Trump’s executive order and the agencies’ statement in the Federal Register on March 6, 2017, that they intended to rescind or revise the Clean Water Rule. But it indicates the EPA and Corps are moving quickly to pare back what many saw as an expansion of federal authority under the Obama administration. The Clean Water Rule sought to define waters of the United States consistent with Justice Kennedy’s concurring opinion in Rapanos. Unlike Justice Scalia’s opinion — which would have limited Clean Water Act jurisdiction to traditionally navigable waterways, tributaries with relatively permanent flows, and wetlands with a continuous surface connection to such waters — Justice Kennedy’s opinion also endorsed federal jurisdiction over intermittent and ephemeral streams, and wetlands lacking a continuous surface connection to other waters, if they have a “significant nexus” to a traditional navigable water.

If the EPA and Corps adopt a new definition consistent with Justice Scalia’s opinion, as yesterday’s announcement suggests, it will mark a significant reduction in federal jurisdiction, particularly in the arid West where ephemeral streams are common. But the practical effect of the change is hard to gauge — at least in California, where officials have already proposed an expanded permitting program under state law that would regulate fill of such features. Adding to the uncertainty, the rescission and eventual revision of the regulatory definition is sure to draw legal challenges that will likely drag on for several years.

The pre-publication version of the proposed rulemaking is available on the EPA’s website.

Copyright © 2017, Sheppard Mullin Richter & Hampton LLP.

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About this Author

James Rusk, land use attorney, sheppard mullin
Associate

James Rusk is an associate with the Land Use and Natural Resources practice group in the firm’s San Francisco office.

Areas of Practice

Natural Resources. Mr. Rusk represents residential, commercial and energy developers in natural resources permitting, regulatory compliance and litigation. He focuses on endangered species, wetlands, and storm water issues under federal and state law, in addition to compliance with the National Environmental Policy Act ("NEPA") and California Environmental Quality Act ("CEQA"). Because every project is...

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S. Keith Garner, Sheppard Mullin, Legal Specialist, environmental laws
Partner

Keith Garner, AICP, is a partner in the Real Estate, Land Use, Natural Resources and Environmental Practice Group in the firm's San Francisco office.

Areas of Practice

Mr. Garner's practice focuses on state and federal environmental laws, land use planning and entitlement procedures, and natural resources permitting issues for large residential, commercial and mixed use communities and energy generation and transmission projects, including wind and solar facilities. He provides legal and strategic planning advice to clients at every stage of the complex development process, including due diligence for land acquisition, project planning and permitting, regulatory compliance, and land use litigation. He handles a wide range of state and federal regulatory matters, including endangered species, wetlands, water quality and land use issues, initiatives and referendums, environmental review under the California Environmental Quality Act (CEQA) and the National Environmental Policy Act (NEPA), Williamson Act contracts, and State Lands issues. He frequently manages the interdisciplinary teams needed to address the regulatory requirements and permit conditions.

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