EPA Proposes changes to “Waters of the United States”

The U.S. Environmental Protection Agency (EPA) announced on December 11, 2018, its anticipated proposed change to the definition of “Waters of the United States.” The “Waters of the United States” is a regulatory definition establishing the scope of the Federal Government’s rule making authority under the Clean Water Act. The Clean Water Act was passed “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” It grants authority to the EPA and the Army Corps of Engineers to regulate “the waters of the United States, including the territorial seas.” However, the Act did not define “Waters of the United States” and, therefore, the regulatory definition has been left to the EPA and Army Corps of Engineers.

The EPA and Army Corps of Engineers passed regulations defining the “Waters of the United States” in the 1980s. In 2006, the Supreme Court in the case of Rapanos v. United States ruled that the Federal Government’s definition of the “Waters of the United States” was beyond the scope of its authority. However, the case resulted in five different opinions including several different proposed tests and definitions for “Waters of the United States,” none of which were supported by a majority (5) of the Court. As a result, the definition and test for “Waters of the United States” was left in doubt. In 2015, the EPA under President Obama passed a new operational definition for “Waters of the United States.” The 2015 regulations were intended to address the issues raised by the Supreme Court while ensuring a broad scope of regulated waterbodies. The 2015 regulations were challenged by a coalition of states and two District Courts issued stays on the application of the regulations during the pendency of the cases (for the states involved in those cases). Subsequently, the Sixth Circuit Court of Appeals issued a nationwide stay on the 2015 regulations. In January 2018, the Supreme Court of the United States reversed the Sixth Circuit’s decision, lifting the nationwide stay. Immediately following the decision, in February, the Trump administration amended the 2015 regulation to add an effective date of February 6, 2020 for the 2015 definition in order to prevent its application while the agency developed a new definition for “Waters of the United States.” However, that rule was itself enjoined by the District Court of South Carolina. As a result of the conflicting District Court stays, the 2015 regulations currently apply in less than half of the states, including New York, while the 1980 regulations apply in the rest.

The Trump Administration has now proposed its definition for the “Waters of the United States.” While environmental organizations are continuing to evaluate the impact of the changes, it is clear that the proposed definition will significantly narrow the scope of the Clean Water Act’s reach and protections. The EPA and Army Corps of Engineers will be taking public comment on the proposed definition for 60 days from publication of the Federal Register.

If you have questions about the proposed definition or are interested in Tooher & Barone’s assistance with preparation of public comments, please call us at 518-432-4100 or send us a message through the Request Consultation tab.

Tooher & Barone, LLP