The effort to craft a new rule defining “waters of the U.S.” will take another step forward today when EPA and the Army Corps of Engineers send a new proposed rule to the Office of Management and Budget for review.

The agencies announced this morning they would transmit the proposal to OMB but offered little in the way of specifics on its substance.

“Farmers, ranchers, landowners, and other stakeholders are counting on EPA to listen to their input when it comes to defining ‘waters of the United States,’” EPA Administrator Scott Pruitt said in a news release. “Today, we are taking an important step toward issuing a new WOTUS definition and answering President Trump’s call to ensure that our waters are kept free from pollution, while promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the federal government and the states under the statutory framework of the Clean Water Act.”

Farm groups such as the American Farm Bureau Federation say the 2015 rule cast an overly broad jurisdictional net and even would regulate puddles, a claim disputed by the previous administration and defenders of the rule such as environmental groups, which have challenged EPA’s attempt to repeal it. The new proposal is expected to interpret EPA's and the Corps' jurisdiction more narrowly.

Don Parrish, senior director for regulatory relations at the Farm Bureau, praised EPA's "diligence in getting the rule over to OMB for interagency review" and said he was looking forward to seeing what's in it. He also said it's critical that EPA and the Corps "finish the job of withdrawing the 2015 rule."

Shortly after taking office, President Trump issued an executive order directing EPA and the Corps to write a new WOTUS rule. The order says EPA and the Corps “shall consider interpreting the term ‘navigable waters’” in the Clean Water Act “in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States.”

Rapanos was a 4-1-4 Supreme Court decision from 2006 that most courts have interpreted using a standard put forth by Justice Anthony Kennedy, who said in his opinion that “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.’”

Kennedy concurred with the judgment of the four justices in the plurality, led by Scalia, but disagreed sharply with his reasoning. Scalia said the Clean Water Act "confers jurisdiction only over relatively permanent bodies of water," but most courts have used Kennedy’s test as the standard in WOTUS challenges, citing a previous Supreme Court decision that said in fractured opinions such as Rapanos, courts should look to the position “taken by those (justices) who concurred in the judgment on the narrowest grounds.”

OMB’s Office of Information and Regulatory Affairs coordinates review of proposed rules with other government agencies. OIRA has 90 days to review proposals, but the rulemaking agency or agencies can extend that review indefinitely. The latest regulatory agenda published by the administration anticipates the publication of a proposed WOTUS rule in the Federal Register by August and a final rule by November 2019.

EPA and the Corps have not released the document sent to OMB, but given the mandate to consider using Scalia's interpretation, it is expected to define “waters” under the Clean Water Act less broadly than the Obama administration’s rule, which was issued in June 2015 and went into effect in August of that year. It was in place for just a few weeks before the Sixth Circuit Court of Appeals enjoined its implementation nationwide.

The appeals court lifted that stay in March after the Supreme Court ruled that district courts, not appeals courts, are the proper venues to hear challenges to the WOTUS rule, also known as the Clean Water Rule.

By that time, however, EPA and the Corps had already extended the effective date of the WOTUS rule into February 2020 – another decision being challenged by environmental groups and some states.

Two district courts – one in North Dakota, the other in Georgia – have issued orders enjoining implementation of WOTUS in 24 states. The states seeking the injunctions said they were concerned that if the rule suspending implementation of WOTUS until 2020 were struck down, the WOTUS rule could go into effect immediately.

In the Georgia ruling, U.S. District Judge Lisa Wood found that the WOTUS rule "allows the agencies to regulate waters that do not bear any effect on the 'chemical, physical, and biological integrity' of any navigable-in-fact water." More specifically, she said the rule "asserts jurisdiction over remote and intermittent waters without evidence that they have a nexus with any navigable-in-fact waters."

In issuing her preliminary injunction, Wood also said that the final WOTUS rule was not a "logical outgrowth" of the proposed rule and that states had demonstrated "that irreparable harm is likely and sufficiently imminent, either when the WOTUS Rule becomes effective in February 2020 and/or if the Applicability Rule is invalidated in one of the four lawsuits that becomes ripe for decision this month."

The National Wildlife Federation issued a release shortly after the agencies said they were sending their proposal to OMB. In it, NWF said, "Today’s announcement kicks off the administration’s plan to roll back Clean Water Act protections for millions of wetland acres and stream miles that have historically been safeguarded under the 1972 Clean Water Act."

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