Upon Joe Biden’s electoral victory this past November, it was widely anticipated that his administration would act quickly to counter the Trump administration’s onslaught to curtail environmental regulations and policies (along with review of a plethora of other regulations and policies). However, whether the pace of those rollbacks could have been predicted is another question. And among those efforts is EPA’s recent decision to begin the process to discard a 2020 Trump regulation and re-write rules defining what is a “water of the United States” under the Clean Water Act.

The Biden administration has targeted over 200 of Trump’s energy and environmental policies since taking office, with many to date having been either reversed or set in the pipeline to be limited, reversed, or wholly tossed aside, with the list growing each day. Moreover, in some instances, federal court rulings have nullified Trump-era rules. In all, whether through regulation, executive order, or guidance, the effort to address head on Trump’s anti-environmental efforts is in overdrive. However, at the same time, some states are doubling down on their efforts to counter those moves, such as a successful effort in Louisiana District Court to enjoin the Administration’s “pause” of oil and gas leases.

Among the Biden administration’s efforts have been steps to rejoin the Paris Climate Accord and halt the Keystone XL pipeline. The Interior Department scuttled a proposed Trump rule that would have weakened safety requirements for drilling offshore in the Arctic Ocean. The EPA during the Obama administration was moving toward the elimination of agricultural use of the pesticide chlorpyrifos, but the Trump administration reversed course. The Biden EPA is now taking steps that will lead to regulation. Add to the list a successful court challenge to remand and vacate Trump EPA rules on transparency of scientific data, formal review of a last-minute Trump rule that would not adequately regulate certain particulate matter under the Clean Air Act that is particularly harmful in low-income communities, revising chemical safety evaluations, and a series of energy, public lands, and climate policies and regulations.

Most significant of recent actions is EPA’s and the Army Corps of Engineers intention to rescind and replace in its entirety Trump’s Clean Water Act “Waters of the United States” – WOTUS -- rule that significantly reduced the scope of federal authority over wetlands, intermittent or ephemeral streams, and other waters. The WOTUS rule has one of the most tortured histories of any environmental regulation since the beginning of modern environmental laws, subject to numerous Supreme Court case, and the subject of numerous regulatory efforts. The Clean Water Act provides federal authority over “waters of the United States,” making the scope of that term critical to the breadth of the Act. Among the many Court cases addressing the scope of the Clean Water Act, a trilogy of cases sets the basic framework for Clean Water Act jurisprudence. In United States v. Riverside Bayview Homes, a 1985 case, the Court provided an expansive reading of “waters of the United States.” More than a decade later, the Court in 2001 significantly pulled back on Riverside Bayview, holding in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers that the touchstone of “waters of the United States” is navigability. Finally, in 2006, a plurality opinion authored by Justice Scalia in Rapanos v. United States sought to further retrench the scope of federal Clean Water Act authority. However, most courts have held that it was Justice Kennedy’s middle-of-the-road concurrence in Rapanos, arguing that federal authority is present under the Clean Water Act as long as the water or feature at issue has a significant nexus to a navigable water, that is the controlling opinion in that case. Chief Justice Roberts, for his part in Rapanos, chided the agencies for their failure to once and for all come up with a reasonable and workable regulation to define the parameters of “waters of the United States.”

Against that backdrop, the Obama-era EPA and Corps drafted guidance documents, issued draft regulations, and ultimately issued a “final” WOTUS rule, which in large part tracked the Kennedy concurrence and implemented objective measures to assess whether a water came within the scope of the Clean Water Act. To no one’s surprise, that rule was immediately subject to multiple lawsuits. Enter Donald Trump, whom merely one month after taking office executed an executive order, suggesting that his EPA and Corps follow the Scalia plurality view of the statute, and revise or rescind the Obama era rule. Following that directive, the agencies issued a new “final” WOTUS rule in 2020, which tracked the Scalia plurality and significantly limited the reach of the statute. In practice, implementation of the Trump WOTUS rule resulted in many waters, particularly those in the more arid western states, no longer being subject to Clean Water Act jurisdiction. Moreover, hundreds of projects that otherwise would have required Clean Water Act section 404 permits from the Army Corps are no longer subject to federal Clean Water Act regulation under that rule. Although some states, such as California, have stepped in to fill the gap and regulate those waters under state law, other states have not followed suit.

The fact that the Biden EPA and Corps will act to recast the WOTUS rule comes as no shock. Nor should it be a surprise as to what will happen going forward—stakeholders will be invited to weigh in, hundreds of thousands of comments will be submitted once a draft rule is made public, at some point a final rule will be issued, and lawsuits will follow immediately thereafter. Once those lawsuits wind their way through appellate decisions, the Supreme Court will likely yet again step into the breach, after which EPA and the Corps will try again. Wash, rinse, repeat.

Joshua A. Bloom, Partner, Environmental General Counsel, LLP


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