Orlando wetlands

U.S. EPA plans to repeal and replace the Clean Water Rule with two separate rulemaking processes, an EPA official told the Association of State Wetland Managers yesterday.

In a talk to the association's annual winter meeting, Mindy Eisenberg, acting director of the EPA wetlands division, said that the agency plans to first rescind the Obama administration's contentious regulation and then work on a new definition for "waters of the United States," according to multiple people who attended the meeting.

"This is an attempt to repeal and replace, but in this case the EPA has decided that it can repeal the regulation now and replace it later," said Stephen Samuels, a former Department of Justice attorney who spoke to the association's meeting right before Eisenberg did.

The Clean Water Rule, also known as the Waters of the U.S. rule, or WOTUS, aims to clarify the reach of federal regulations over wetlands and waterways under the Clean Water Act. The act itself uses vague language to assert its jurisdiction over "traditionally navigable waters of the United States" without providing any further detail, and various administrations have struggled to define the term in the past.


Current EPA Administrator Scott Pruitt sued the Obama administration over the regulation when he was the Oklahoma attorney general, saying along with industry interests that it amounted to government overreach.

The Trump administration will first look to rescind WOTUS before taking on the heavier lift of replacing the regulation with a new definition of which waters are covered by the Clean Water Act, Eisenberg reportedly told the meeting.

In repealing WOTUS, the agency would revert to a 1986 definition and would also rely on 2008 guidance from the George W. Bush administration about how to apply that definition.

The repeal would essentially maintain the current status quo, as the administration is already using the 1986 rule and Bush guidance because the Obama administration regulation has been stayed by the 6th U.S. Circuit Court of Appeals pending litigation. The Supreme Court is also currently considering whether the case should proceed in district or circuit court (Greenwire, April 3).

EPA did not respond to requests for comment.

Those at the meeting said Eisenberg did not explain the administration's reasoning for separately repealing and replacing WOTUS.

"She was clearly sticking to her talking points," National Wildlife Federation Wetlands and Water Resources Director Jan Goldman-Carter wrote in an email.

But there are a few reasons why the administration might want to split up the process.

One is that the administration could be racing against time to repeal the regulation before the Supreme Court rules on which jurisdiction should hear the legal challenge to the Obama rule.

The Supreme Court could reach a decision on jurisdiction by the end of 2017. If the high court decides that the 6th Circuit does not have jurisdiction, it could endanger the validity of the stay that the circuit court issued for WOTUS, Samuels said.

If the Supreme Court decides that the 6th Circuit can proceed with the case, he said, EPA would likely have an easier time of dismissing the litigation if it has already taken steps to repeal WOTUS.

Rescinding the regulation would be a lot easier, and faster, without EPA also having to come up with a plan to replace it at the same time.

"That Supreme Court decision will determine a lot, not just for the Clean Water Rule, if it is still in existence, but also for any future challenges on this issue," Samuels said.

Former EPA Office of Water head Ken Kopocis has a different theory about the agency's plan.

Kopocis, who did not hear Eisenberg speak to the association but has heard both about the talk and EPA's plans from former colleagues still working at the agency, said he believes EPA may not actually be planning to replace the regulation.

"I am not convinced that they will do a new rule," he said.

EPA has previously said it intends to rewrite WOTUS using an opinion written by the late Supreme Court Justice Antonin Scalia in the famously messy 2006 Rapanos v. United States 4-1-4 split decision.

In that case, Michigan landowner John Rapanos wanted to develop a property that was designated a wetland. Because he hadn't applied for a permit, EPA sought to bring civil and criminal enforcement actions.

Scalia, who died last year, argued that the Clean Water Act only applied to "navigable waters" connected by a surface flow at least part of the year. He was joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito.

But Justice Anthony Kennedy issued a concurring opinion, stating that waters must have a "significant nexus" to navigable rivers and seas, including through biological or chemical connections.

Until now, EPA has followed Kennedy's "significant nexus" test in regulating clean water.

"Every lawyer who is going to be consulted on this is going to say that defending a rule based on Scalia's opinion will be very, very difficult," Kopocis said.