WOTUS Repeal Moves

Water Rule Sent to White House

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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A revision of the waters of the United States, or WOTUS, rule has been sent to the White House for review. (Photo by Chris Clayton)

OMAHA (DTN) -- The U.S. Environmental Protection Agency has launched a repeal and replace of the waters of the United States, or WOTUS, rule by sending a proposed rewrite to the Office of Management and Budget this week, according to a posting on the OMB website.

The OMB is reviewing the proposed rule before it is posted to the government regulations website, which is www.regulations.gov

Once that occurs, the rule will be subject to a public comment period, which is here http://bit.ly/…

Currently, the WOTUS rule is hung up in the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, Ohio. A legal question remains about whether the court is the proper venue for a number of lawsuits filed against the rule. The U.S. Supreme Court is expected to review the jurisdictional question sometime this year.

President Donald Trump's administration is moving forward with a repeal and replace of the WOTUS rule that could take effect if the Supreme Court rules the Sixth Circuit is not the proper venue.

Back in March, EPA Administrator Scott Pruitt launched a review of the rule and hinted in an agency document that a rewrite may include the removal of the so-called "significant nexus" test, which has been the subject of many lawsuits. The definition of navigable waters was expanded in the WOTUS rule to include tributaries and other waters that are connected to larger navigable water bodies.

Those areas, the Obama administration's EPA contended, should be considered waters of the U.S., because they are linked to streams, rivers and other traditional navigable waters by a so-called significant nexus.

During the past two years, agriculture, other industry groups and state governments across the country, alleged the WOTUS rule expanded federal jurisdiction to waters not traditionally protected by the Clean Water Act.

Pruitt launched a review of the WOTUS rule as a result of the president's executive order to review and rescind the rule.

In the signing statement from Pruitt, he said the agency, "will consider interpreting the term 'navigable waters,' as defined in the CWA in a manner consistent with the opinion of Justice (Antonin) Scalia in Rapanos (v. U.S.). It is important that stakeholders and the public at large have certainty as to how the CWA applies to their activities."

The 2006 Rapanos case involved a Michigan landowner who filled in a wetland without a permit. A circuit court ruled that because the wetland was adjacent to a tributary, the wetland was considered to be a jurisdictional water.

The U.S. Supreme Court disagreed with the lower court, and a plurality of the high court ruled the Clean Water Act did not give broad authority over all waters.

In writing the WOTUS rule, however, the Obama EPA clung to the opinion of Justice Anthony Kennedy who suggested a significant nexus test is valid.

"Wetlands possess the requisite nexus, and thus come within the statutory phrase 'navigable waters,' if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as 'navigable,'" Justice Kennedy wrote.

"This definition may include wetlands without an actual hydrological connection to navigable-in-fact waters (but presumably not wholly isolated)."

Pruitt indicated the EPA will consider the plural opinion expressed by the late Scalia on Rapanos case, who disagreed that the EPA has far wider jurisdiction on waters.

"In applying the definition to 'ephemeral streams,' 'wet meadows,' storm sewers and culverts, 'directional sheet flow during storm events,' drain tiles, manmade drainage ditches, and dry arroyos in the middle of the desert, the Corps has stretched the term 'waters of the United States' beyond parody," Scalia wrote.

"The plain language of the statute simply does not authorize this 'land is waters' approach to federal jurisdiction," Scalia concluded.

Todd Neeley can be reached at todd.neeley@dtn.com

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Todd Neeley