Clean Water Act Update – Executive Order Directing the Rescission or Revision of WOTUS
On February 28, 2017, President Donald Trump signed an executive order directing the U.S. Environmental Protection Agency ("EPA") and the U.S. Army Corps of Engineers (the "Corps") to propose a new rule that rescinds or revises the regulation under the Clean Water Act, known as the Waters of the U.S. rule ("WOTUS"), that defines "waters of the United States" and identifies the extent of federal agency authority over waters and wetlands. On March 1, 2017, EPA and the Corps issued a notice of intent to review and rescind or revise the WOTUS rule.
Following the directive of the executive order, the notice of intent states that the agencies will consider the late Justice Antonin Scalia's opinion in Rapanos v. United States, 547 U.S. 715 (2006). Justice Scalia's opinion argued that the Clean Water Act applied only to "navigable waters" that are connected by a surface flow during part of the year. Justice Scalia's opinion voiced the plurality opinion in a decision split 4-1-4. Justice Kennedy wrote a separate and significantly broader opinion. Justice Kennedy's opinion argued that waters must have a "significant nexus" to navigable waters. The WOTUS rule drafted in 2015 by the Obama administration followed Justice Kennedy's broader opinion in the Rapanos decision. The WOTUS rule has been subject to lengthy litigation in the Sixth Circuit, which included a stay of the rule.
The proposed revision of the WOTUS rule is likely good news for real estate developers, farmers, and other land owners. Developers of many types of land use projects have been frustrated by delays and enforcement related to federal permitting for jurisdictional waters and wetlands. A revised proposed rule by the agencies will allow developers and other stakeholders an opportunity to comment. Unfortunately in the short term, developers should likely plan and prepare for more delay in projects that include property with the potential for jurisdictional waters and wetlands. Environmental attorneys and consultants are already encountering delay in communications with EPA and the Corps during the transition to the new administration. The rescission or revision of the WOTUS rule and other regulations is likely to cause additional delay as the agencies adjust. Developers should build additional time into project schedules for agency action where possible.
A copy of the executive order and the proposed rulemaking are available on the EPA website at the following link: https://www.epa.gov/cleanwaterrule.
The articles published in this newsletter are intended only to provide general information on the subjects covered. The contents should not be construed as legal advice or a legal opinion. Readers should consult with legal counsel to obtain specific legal advice based on particular situations.