President Trump Orders Review of WOTUS Rule
On February 28, President Trump signed Executive Order 13778, entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” After years of debate over the federal government’s jurisdiction to regulate wetlands and streams, this most recent Executive Order is yet another shift in the federal government’s ability to control activities in smaller bodies of water.
President Trump previously criticized the Waters of the United States (WOTUS) Rule as federal overreach and stated that the Rule has “truly run amok, and is one of the rules most strongly opposed by farmers, ranchers and agricultural workers . . . It’s prohibiting them from being allowed to do what they’re supposed to be doing.” The Order directs the Administrator of the Environmental Protection Agency and the Assistant Secretary of the Army for Civil Works to review the WOTUS Rule for “consistency” with the Trump administration’s views on the limit of federal power.
The Order defined a new national policy for America’s waters: “It is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.” The Order directs that, after review for consistency with the stated policy, the EPA and the Army Corps of Engineers publish a proposed rule that will either rescind or revise the current rule. In crafting the proposed rule, the Order directs that consideration be given to interpreting the term “navigable waters” in a manner “consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).”
In Rapanos, the Supreme Court of the United States issued a fractured decision regarding the interpretation of “navigable waters” as it relates to federal agencies' ability to regulate wetlands and waters under the Clean Water Act. Application of Justice Scalia’s approach would narrow the scope of waters under federal jurisdiction to be “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] . . . oceans, rivers, [and] lakes.’ The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.” Rapanos v. United States. Rapanos was a plurality opinion with no clear majority; the justices divided 4-1-4. Justice Anthony Kennedy authored a concurring opinion that sided with the result, but not the logic, of Justice Scalia’s bloc. In his opinion, Justice Kennedy found that waters with a “significant nexus” to traditionally navigable waterways should be considered waters of the United States subject to the Clean Water Act. Courts have been divided on how to implement the Rapanos rationale and had often applied both Justice Scalia’s and Justice Kennedy’s tests simultaneously.
The EPA developed its current WOTUS Rule under President Obama by gluing together parts from both the Scalia and Kennedy opinions, notably including Justice Kennedy’s “significant nexus” test. By ordering the EPA and the Corps of Engineers to adopt Justice Scalia’ interpretation, this new Executive Order appears to sidestep Justice Kennedy’s concurring opinion by reversing the EPA's previous stance.
A copy of Executive Order 13778 can be found here. Public notice and comment will be available after any EPA or Corps of Engineers proposed rule is published in the Federal Register.