New Executive Order Redirects “Waters of the United States”
Wendy L. Manley
Wendel Rosen Black & Dean LLP
Whatever you think “Waters of the US” might currently mean under Clean Water Act, expect it to change again. On February 28, 2017, President Trump issued an Executive Order directing the EPA & Corps of Engineers to review and rescind or revise the 2015 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 rolls of Congress and the States under the Constitution.”
The 2015 WOTUS Rule, which revised regulations that had been in place for more than 25 years, was published June 29, 2015, and suspended nationwide by the Sixth Circuit Court of Appeals in October following multiple challenges. While characterized by EPA as “clarifying” its jurisdiction following some confusing Supreme Court opinions, the WOTUS Rule was seen by others as expanding that jurisdiction. By January 2016, the EPA and Corp announced the rule was under further review. Not surprisingly, the Executive Order does not appear to contemplate that the WOTUS Rule might be left as it is.
The Executive Order also directs the agencies, in their WOTUS Rule review, to consider Justice Scalia’s more narrow interpretation of “navigable waters” in the Supreme Court’s Rapanos decision, issued in 2006. Justice Scalia interpreted WOTUS as encompassing wetlands only when they have “a continuous surface connection” to permanent, standing or continuously flowing water. Scalia’s opinion did not command a majority of the Court, so the “significant nexus” approach of Justice Kennedy, who concurred in the result, was incorporated into the 2015 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 wasted no time, having signed the notice of their intended review the same day as the Executive Order. Meanwhile, in California, we can also expect the State and Regional Water Boards will notch up their efforts to regulate wetlands excluded from federal jurisdiction.
Click here to view the executive order.