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Law360 quotes Fred Wagner on how the Clean Water Act will be defined

July 31, 2017

Venable partner Fred Wagner was quoted by Law360 on July 31, 2017, in an article discussing questions environmental attorneys have about the Clean Water Act (CWA). The 45-year-old statue has been one of the most contested environmental policies due to the Obama administration's controversial interpretation of the term "waters of the United States". The U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers proposed a rule to rescind the 2015 definition of "waters of the United States" and replace the language with a definition that is not as expansive. The agencies stated another alternative would be to propose a new definition guided by the ideas of late U.S. Supreme Court Justice Antonin Scalia.

Wagner said there are several questions about how the Trump administration will replace the Obama-era rule with one of its own, including how it will address the massive administrative record compiled in the lead-up to the Clean Water Rule.

"The EPA and Army Corps published a 400-page technical document to accompany the regulations," Wagner said. "It was lengthy and detailed and based on scientific conclusions. In order to go in a different direction, there has to be some reasoned basis for that — whether it's that the information was unreliable, or changed, or unsupportable. The Trump administration has the authority to do it, but they have to demonstrate the basis."

Congress is prepared to step into the fight, as the House Appropriations Committee's 2018 Interior and Environment Appropriations bill would allow the EPA and Army Corps to withdraw the Clean Water Rule "without regard to any provision of statute or regulation that establishes a requirement for such withdrawal."

In the meantime, the EPA and Corps will be guided by Scalia's interpretation of jurisdiction as they issue new permits. But that won’t completely settle questions about whether a project involves waters that are subject to federal permitting that arise under the framework that existed before the Clean Water Rule, Wagner said.

"There will be uncertainty in the interim where people have projects that they need or may not need permits for, and there could be litigation associated with those individual actions," he said.