INSIDE EPA: Supplemental EPA Proposal Aims To Bolster Case For CWA Rule’s Repeal

EPA and the Army Corps of Engineers have released an overhauled proposal to withdraw the 2015 Clean Water Act (CWA) jurisdiction rule that greatly expands on their legal arguments for abandoning the Obama administration’s signature water policy, a move that could help bolster the repeal to fend off expected legal challenges.

The supplemental proposal, which the agencies posted online June 29 ahead of publication in the Federal Register, will start a new 30-day public comment period on repealing the Obama-era jurisdiction rule. It goes far beyond the brief justification for scrapping the rule that the agencies offered in their original proposal a year earlier — adding legal and pragmatic reasons to support the move.

“[A]s a result of the agencies’ review and reconsideration of their statutory authority and in light of the court rulings against the 2015 Rule that have suggested that the agencies’ interpretation of the ‘significant nexus’ standard as applied in the 2015 Rule was expansive and does not comport with and accurately implement the limits on jurisdiction reflected in the CWA and decisions of the Supreme Court, the agencies are also concerned that the 2015 Rule lacks sufficient statutory basis,” the new proposal says.

EPA and the Corps say they now believe that their predecessors exceeded the scope of the landmark Supreme Court opinion the agencies used as the basis for the 2015 rule — that being Justice Anthony Kennedy’s concurrence in the 2006 4-4-1 case Rapanos, et ux., et al., v. United States, et al. Kennedy held that wetlands and tributaries with a “significant nexus” to downstream navigable waters can be jurisdictional under the CWA, but the new proposal makes a case that the Obama administration took that language far beyond Kennedy’s intent.

“The agencies also propose to conclude that the 2015 Rule exceeded the agencies’ authority under the CWA by adopting such an interpretation of Justice Kennedy’s ‘significant nexus’ standard articulated in Rapanos v. United States . . . as to be inconsistent with important aspects of that opinion and to cover waters outside the scope of the Act, even though that concurring opinion was identified as the basis for the significant nexus standard articulated in the 2015 Rule,” it says.

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