Waters of the U.S. – The Tide of Uncertainty Rises Again

The controversial definition of “Waters of the United States” (WOTUS), which establishes the reach of federal jurisdiction under the Clean Water Act, has been thrust in a new direction. On February 28, 2017, President Trump issued an Executive Order directing the EPA and Corps of Engineers to review and rescind or revise the WOTUS definition issued by rule published June 29, 2015 (WOTUS Rule). The agencies were directed to review the WOTUS Rule for consistency with the “Policy” stated in the Order: “It is in the national interest to ensure navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard to the roles of Congress and the States under the Constitution.”

The WOTUS Rule revised regulations that had been in place for more than 25 years, and over much of that time, the interpretation of WOTUS was controversial. Its application triggered numerous lawsuits, some of which reached the U.S. Supreme Court and altered the interpretation of WOTUS. The Supreme Court’s fractured 2006 decision in Rapanos v. United States created additional confusion. In Justice Scalia’s opinion, wetlands would be encompassed in WOTUS only when they have “a continuous surface connection” to permanent, standing or continuously flowing water. Notably, Scalia’s opinion did not command a majority of the Court. Justice Kennedy concurred in the ultimate result, but through application of his own “significant nexus” analysis. The decision generated substantial uncertainty over which test should be applied, and ultimately, many lower courts followed Kennedy’s analysis.

To “clarify” the scope of WOTUS under Rapanos, the EPA and the Corps issued the WOTUS Rule, which employed Justice Kennedy’s “significant nexus” test. Many, however, saw that interpretation as overly expansive, and before it even took effect, several legal challenges were filed. By October 2015, the Sixth Circuit Court of Appeals suspended it nationwide, and by January 2016, the EPA and Corps announced the rule was under further review.

Against that backdrop, the effect of the Executive Order is to push the rule in a different direction by instructing the EPA and Corps, in their WOTUS Rule review, to consider interpreting WOTUS in a manner consistent with the opinion of Justice Scalia in Rapanos.  Justice Scalia’s more narrow interpretation of WOTUS would result in the exclusion of some wetlands from the scope of the Clean Water Act. Not surprisingly, the Executive Order does not appear to contemplate that the WOTUS Rule could be left as it is — rescission or revision, “as appropriate,” must be published for notice and comment before being adopted.

Lastly, the Executive Order directs other agencies and executive departments implementing or enforcing the WOTUS Rule to review their rules, policies and procedures for consistency with the Policy. And, the Attorney General may, as he deems appropriate, notify the courts and take appropriate measures with respect to pending litigation over the WOTUS Rule.

Given the technical challenges and contentious history of defining WOTUS, one might expect it could be some time before EPA and the Corps can develop, propose, circulate for comment, and ultimately issue a revised WOTUS rule, and legal challenges are sure to follow. However, EPA and the Corps signed a notice of their intended review the same day as the Executive Order, so as has been seen in other Presidential actions, haste appears to be the order of the day. Meanwhile, in California, we can expect the State and Regional Water Boards will elevate their efforts to regulate wetlands excluded from federal jurisdiction.

The order can be viewed here: https://www.whitehouse.gov/the-press-office/2017/02/28/presidential-executive-order-restoring-rule-law-federalism-and-economic