Manufacturing Today - May/June 2017 - 8
COLUMN BY | LYNN L. BERGESON
The State of Play
looking at how the clean water
rule will be reworked
Waters of the United States has been a "fluid" concept for
years. It defines the jurisdictional limits of the authority of
the United States under the Clean Water Act (CWA). President Trump's Feb. 28, 2017, executive order (EO) directing
the U.S. Environmental Protection Agency (EPA) and the U.S.
Army Corps of Engineers (Corps) to rescind and replace the
Clean Water Rule (CWR) is the latest development to resolve
the question of which surface waters and wetlands may be
federally regulated and subjected to CWA permitting. Many
U.S. businesses objected to the rule, so this is one action that
is less controversial than others the Trump Administration
has taken. This article discusses its significance.
manufacturing-today.com MAY/JUNE 2017
In the decade since the U.S. Supreme
Court issued its opinion in 2006 in
Rapanos v. United States, EPA and
the Corps have made three attempts
to interpret Rapanos and "clarify"
the definition of waters of the United States, often referred to as "WOTUS." Trump's EO includes specific
instruction to EPA and the Corps to
consider interpreting "navigable waters" in a manner consistent with the
late Justice Scalia's opinion authored
on behalf of the plurality in Rapanos.
Issued in final in June 2015, the
CWR was immediately met with legal challenges brought by environmental groups, industry, agriculture
stakeholders and 31 states. State and
industry opponents argue that the
rulemaking process violates the Administrative Procedure Act (APA),
fails to follow Rapanos, and disregards the CWA's cooperative federalism principles. Since October 2015,
implementation of the CWR has
been halted nationwide pending the
outcome of the litigation in the U.S.
Court of Appeals for the Sixth Circuit.
The Sixth Circuit recently suspended
the merits proceedings due to the Supreme Court's decision to review its
ruling on the threshold issue of which
venue is appropriate. CWA Section
509(b) sets forth seven categories of
agency actions for which jurisdiction
to review the action resides with the
U.S. Circuit Courts of Appeal. The
parties to the CWR litigation disagree
as to whether the rule fits under any
of the seven categories, and the Supreme Court has agreed to review
the Sixth Circuit's ruling that it has
jurisdiction under Section 509(b) to
review the final rule.
On March 6, 2017, EPA and the
Corps published a formal notice of
intent to review and rescind or revise